J-S79042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BERNARD FORD : : Appellant : No. 3692 EDA 2016
Appeal from the Judgment of Sentence November 14, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002505-2014, MC-51-CR-0044110-2013
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 19, 2018
Appellant, Bernard Ford, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
open guilty plea to third-degree murder and conspiracy.1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them. For purposes of our disposition, we add that counsel filed a
petition for leave to withdraw as counsel and Anders brief in this Court on
July 25, 2017. On August 16, 2017, Appellant filed a pro se response.
As a preliminary matter, counsel seeks to withdraw his representation
____________________________________________
1 18 Pa.C.S.A. §§ 2502(c) and 903, respectively. J-S79042-17
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349
(2009). Anders and Santiago require counsel to: (1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; (2) file a
brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to
confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903
A.2d 1244, 1246 (Pa.Super. 2006).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.
-2- J-S79042-17
* * *
Under Anders, the right to counsel is vindicated by counsel’s examination and assessment of the record and counsel’s references to anything in the record that arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel must: (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.
Id. at 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel filed a petition to withdraw. The petition
states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. (See Letter to Appellant, dated July 24,
2017, attached to Petition for Leave to Withdraw as Counsel). In the
Anders brief, counsel provides a summary of the facts and procedural
history of the case. Counsel’s argument refers to relevant law that might
arguably support Appellant’s issue. Counsel further states the reasons for
his conclusion that the appeal is wholly frivolous. Therefore, counsel has
-3- J-S79042-17
substantially complied with the requirements of Anders and Santiago.
Counsel raises the following issue on Appellant’s behalf:
DID THE HONORABLE COURT COMMIT AN ABUSE OF DISCRETION BY REFUSING TO PERMIT APPELLANT TO WITHDRAW HIS GUILTY PLEA BECAUSE THE PLEA WAS ENTERED UKNOWINGLY AND INVOLUNTARILY DUE TO THE FACT THAT APPELLANT WAS SUFFERING FROM MENTAL ILLNESS AT THE TIME HE ENTERED HIS PLEA AND HAD NOT TAKEN NECESSARY MEDICATION THE NIGHT BEFORE HE ENTERED HIS GUILTY PLEA?
(Anders Brief at 14)2.
This Court reviews “a trial court’s ruling on a pre-sentence motion to
withdraw a guilty plea for an abuse of discretion.” Commonwealth v.
Islas, 156 A.3d 1185, 1187 (Pa.Super. 2017). “An abuse of discretion is
not a mere error in judgment but, rather, involves bias, ill will, partiality,
manifest unreasonableness, and/or misapplication of law.” Commonwealth
v. Gordy, 73 A.3d 620, 624 (Pa.Super. 2013), appeal denied, 624 Pa. 687,
87 A.3d 818 (2014). “By contrast, a proper exercise of discretion conforms
to the law and is based on the facts of record.” Id.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Genece E.
Brinkley, we conclude Appellant’s issue on appeal merits no relief. The trial
court opinion comprehensively discusses and properly disposes of the
2 Appellant also raised this claim in his pro se response to counsel’s petition for leave to withdraw as counsel.
-4- J-S79042-17
question presented. (See Trial Court Opinion, filed June 5, 2017, at 9-21)
(finding: to extent Appellant asserts plea counsel was ineffective because he
“forced” Appellant to enter guilty plea, this claim is premature and must wait
until collateral review; additionally, Appellant failed to demonstrate that
allowing withdrawal of his guilty plea would promote fairness and justice;
record belies Appellant’s claim that he did not understand consequences or
terms of his guilty plea, due to his mental health issues; at November 3,
2015 plea hearing, Appellant reviewed and signed written guilty plea
colloquy with counsel; court then conducted thorough oral colloquy with
Appellant in which it discussed nature of charges, factual basis of plea,
permissible sentencing ranges, right to jury trial, Appellant’s presumption of
innocence, Appellant’s level of education, and Appellant’s mental health
issues; nothing in record indicates Appellant was confused or disoriented; in
fact, Appellant answered court’s questions during oral colloquy in lucid and
coherent manner; Appellant is bound by statements made at guilty plea
hearing; with respect to Appellant’s assertion that he was not informed of
his obligation to testify for Commonwealth, trial counsel stated he explained
every component of plea agreement to Appellant, including Appellant’s
obligation to testify for Commonwealth at trial of Appellant’s co-defendants;
significantly, Appellant’s actions after execution of plea agreement
demonstrate Appellant’s awareness of requirement to testify for
Commonwealth; further, Commonwealth would suffer substantial prejudice if
-5- J-S79042-17
court allowed Appellant to withdraw guilty plea; through Appellant’s
involvement in co-defendants’ case, Appellant was aware of
Commonwealth’s evidence and trial strategy; as such, allowing Appellant to
withdraw plea would substantially impair Commonwealth’s ability to
prosecute Appellant; under these circumstances, court properly denied
Appellant’s motion to withdraw his guilty plea). Following our independent
review of the record, we conclude the appeal is frivolous. See Palm, supra.
Accordingly, we affirm on the basis of the trial court opinion and grant
counsel’s petition to withdraw.
Judgment of sentence affirmed; petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/19/2018
-6- .' Circulated 12/2tf,[j[j2:21 PM
JUNO 5 2017 IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Qfflce of Judicial Records Appeals/Post Trial CRIMINAL TRIAL DIVISION
_C_QMMnNWEALTH. . ...
vs. CP-51-CR-0002505-2014 Comm v Ford, Bemard Op1mon
I Ill 1111111111111111 II I 7956374211 SUPERIOR COURT BERNARD FORD 3692 EDA 2016
OPINION
BRINKLEY, J. JUNE 5, 2017
Defendant Bernard Ford appeared before this Court and pied guilty to Third Degree
Murder and Criminal Conspiracy. Prior to pleading guilty, Defendant entered into a
Memorandum of Agreement with the Commonwealth, wherein Defendant agreed to testify as a
Commonwealth witness against his co-conspirators. However, at his co-conspirators' trial,
Defendant denied any knowledge of the crime. Subsequently, Defendant, through counsel, made
an oral motion to withdraw his guilty plea. This Court denied the motion. A jury found
Defendant's co-conspirators not guilty. This Court sentenced him to an aggregate sentence of 25-
50 years state incarceration, with credit for time served. Defendant filed a Notice of Appeal to
the Pennsylvania Superior Court and raised the following issue on appeal: whether the trial court
abused its discretion when it denied Defendant's motion to withdraw his guilty plea. This
Court's judgment of sentence, and denial of Defendant's motion to withdraw his guilty plea,
should be affirmed. FACTS AND PROCEDURAL HISTORY
On July 14, 2013, at approximately 11: 18 a.m., Philadelphia Police Officers responded to
a radio call reporting gunshots at 2048 Bellmore Street. Upon arrival, police officers discovered
victim Alfred McCrory ("McCrory," a.k.a. "Doo-Doo") lying in the street with multiple gunshot
wounds to his head and torso. McCrory was transported to Temple University Hospital where he
was pronounced dead at 11 :55 a.m. On July 15, 2013, the assistant medical examiner determined
the cause of death to be gunshot wounds and ruled McCrory's death a homicide.
After a four-month long investigation, which included interviewing several eyewitnesses
to the murder as well as discovering incriminating texts on McCrory's cellular phone, homicide
detectives obtained arrest warrants for Defendant and two other men: Terrence Johnson
(''Johnson"), and Spencer Hutchins ("Hutchins"). On November 14, 2013, Defendant was
arrested at his apartment and charged with murder and conspiracy. On the day of his arrest,
Defendant gave a statement to police, in which he described being present at the scene of the
murder. He identified the men involved in the shooting, and stated that they all knew each other
because they sold drugs together on that block. He stated that McCrory "ran" the block and
collected "rent" from Defendant and his friends for permission to sell crack there, but then later
McCrory began bringing in new people to the block to sell drugs and did not charge them rent.
Defendant stated that he had known McCrory since childhood. The next day, Johnson and
Hutchins were arrested and also charged with murder and conspiracy.
On November 2, 2015, Defendant, with his defense counsel David Desiderio, Esquire,
entered into an agreement to cooperate with the Commonwealth. Defendant agreed to plead
guilty to Third Degree Murder and Criminal Conspiracy. He further agreed to testify as a
Commonwealth witness against Hutchins and Johnson at their joint jury trial. In exchange, the
2 Commonwealth agreed to make a sentencing recommendation commensurate with Defendant's
conduct and level of cooperation.
On November 3, 2015, Defendant appeared before this Court and pied guilty to murder
and criminal conspiracy. At the guilty plea hearing, this Court conducted a thorough on-the-
record colloquy to ensure that Defendant's guilty plea was knowing and voluntary. Defendant
disclosed his mental health issues, explaining that he had been diagnosed with Attention Deficit
Hyperactivity Disorder (ADHD), schizophrenia and depression, and that he took medication
daily, although he did not take it on the night before his plea because he left the prison before it
was distributed. Defendant stated that he understood why he was in court and understood that he
was pleading guilty. He denied that any of his mental health conditions would prevent him from
knowingly and voluntarily pleading guilty. This Court accepted Defendant's guilty plea and
deferred sentencing to allow for the preparation of a presentence investigation (PSI) report and a
mental health evaluation.
On November 6, 2016, Defendant traveled to the District Attorney's Office for witness
preparation. His attorney, Mr. Desiderio, was unable to accompany him due to an ongoing family
emergency; however, Defendant was able to speak to Mr. Desiderio via telephone during the
prep session when he had questions or concerns.
Nine days after his guilty plea, on November 12, 2015, Defendant appeared before this
Court as a Commonwealth witness in the matter of two of his co-conspirators, Hutchins and
Johnson, who were tried together before a jury. Instead of testifying consistent with his prior
statements regarding the murder, Defendant denied even knowing the decedent, denied any
knowledge of the murder, and denied making an agreement with the Commonwealth. He further
3 stated that his attorney, Mr. Desiderio, had forced him to plead guilty and that he was not on his
medication at the time of his guilty plea before this Court. (N.T. 11/12/15, p. 7-55).
The Court was adjourned until November 16, 2015. On that day, Defendant appeared
before this Court with new counsel, Perry DeMarco, Jr., Esquire. Defense counsel argued an oral
motion to withdraw Defendant's guilty plea. He argued that Defendant was ''forced" into an
agreement with the Commonwealth, that Defendant was poorly advised by Mr. Desiderio, and
that Defendant did not understand the Memorandum of Agreement. (N.T. 11/16/15, p. 5-6).
Defendant testified he had learning disabilities, specifically ADHD, schizophrenia and bipolar
disorder, and that he took the drugs Ritalin, Zyprexa, and Benadryl to treat these issues.
Defendant stated that he signed the Memorandum of Agreement with the Commonwealth
without ever reading the document or having it explained to him by Mr. Desiderio. He testified
that when he signed the agreement, he did not understand that he was cooperating with the
Commonwealth and did not know that he would be called as a witness. He further stated that he
did not take his medications on the day he signed the agreement because they had not been
distributed yet at the prison when he left for the District Attorney's (DA) Office. Defendant
testified that Mr. Desiderio was not present when he visited the DA's Office again to prepare to
testify at trial. He further testified that he did not take his medication on the day he appeared
before this Court to plead guilty. He stated that at his guilty plea hearing, he did not understand
his colloquy and did not understand any of the judge's questions. Defendant further testified that
he had not taken his medication on the day he was arrested and gave a statement to police,
wherein he described being present at the scene of the crime. Id. at 7-21. The defense rested on
its motion at the conclusion of Defendant's testimony.
4 Assistant District Attorney Brian Zarallo, Esquire, testified first for the Commonwealth.
He testified that he and ADA Whitehead met with Defendant and Mr. Desiderio at the District
Attorney's Office to discuss the Memorandum of Agreement. ADA Whitehead had a family
emergency, so ADA Zarallo stepped in to review the agreement with Defendant and Mr.
Desiderio. Zarallo testified that he left Defendant and Mr. Desiderio alone for approximately 35-
40 minutes so they could review the agreement. When he returned, Mr. Desiderio noted some
minor changes that needed to be made to the document, which were quickly corrected. Zarallo
testified that he recalled Defendant's demeanor that day as being "like an individual who didn't
necessarily want to cooperate but given the manner of the case, his understanding of the amount
of evidence against him, he came off to me like somebody that had wrapped his head around this
as really my best and only way to avoid what will be an eventual life sentence." Id. at 101.
Zarallo testified that at no point did Defendant appear to be confused or disoriented. Id. at 90-
102.
Assistant District Attorney Allison Ruth testified next. She testified that she stood in for
ADA Whitehead at Defendant's guilty plea hearing because ADA Whitehead had been called
away on a family emergency. She testified that on the day of the plea, she signed Defendant's
written guilty plea colloquy immediately after Defendant and Mr. Desiderio signed it. She stated
that they all signed the colloquy prior to the guilty plea hearing before this Court. Ruth testified
that this Court conducted an oral on-the-record colloquy with Defendant and that in her opinion,
Defendant appeared to understand the nature of the proceedings and knew what he was doing.
She stated that Defendant was "completely engaged" in the proceeding and even asked a
question regarding the domestic relations consequences of his plea that led him him to confer
5 with his attorney off the record for a moment. Ruth testified that at no time did Defendant say he
did not want to plead guilty or that he was innocent of the charges against him. Id. at 116-124.
David Desiderio, Esquire testified next for the Commonwealth. He testified that as =��= ��---�-� ---� --�-= - ···-------··-··---··-- - ·-··· ..:··- .. · .• ---·-·.:.·-····--·· -- ·-·.··=-== · ··-� · . ·--··-� -·- ·· ··-· .. ··--·· Defendant's counsel, he had been in contact with him several times via phone or in person at the
prison. He testified that he spent at least 4 Y:i hours with Defendant at the District Attorney's
Office on November 2, 2015, working through the Memorandum of Agreement. He discussed
with Defendant the incriminating evidence against him, including the eyewitness accounts, the
text messages recovered from the decedent's cell phone, and the statement Defendant gave
police after his arrest that placed him at the scene of the murder. He then provided Defendant
with his professional opinion regarding the probability of a guilty verdict. Desiderio testified
that when he asked Defendant how he wished to proceed, Defendant replied, "Whatever is best
for me." Desiderio stated that he believed Defendant's best chance was to offer himself as a
Commonwealth witness, plead guilty to third-degree murder, and testify for the Commonwealth.
He testified that he explained this to Defendant many times. He further stated that he reviewed
with Defendant in great detail the proffer letter, and later the Memorandum of Agreement.
Desiderio testified that he read each paragraph out loud with Defendant and explained to him
what each item meant "in common parlance," offering additional explanation if necessary.
Desiderio testified that when the Commonwealth came in the room with a map of the crime
scene, Defendant, without any coaxing, pointed out where Hutchins was standing, identified the
direction from which McCrory had been walking prior to being gunned down, and explained the
location of the fire cartridge casings. Id. at 129-137.
Desiderio stated that "beyond a shadow of a doubt, [Defendant] knew why he was there.
If he didn't understand why he was there, he wouldn't have been there." He further stated that
6 Defendant "was very much in tune with what was happening in that office at that time," and at
no time appeared incoherent. Desiderio emphatically denied that he forced Defendant to plead
guilty, stating, "Sir, I would not know how to force somebody into a plea who is standing before --- ·-= --=-=-� - -������=--···-·-·-··-- - -----·--····-···
a judge. I don't know what that means. The answer, the short answer to that is absolutely not."
Id. at 155.
Desiderio testified that on November 6, 2015, Defendant went alone to the District
Attorney's Office to prepare to testify. Desiderio was unable to accompany him on that date, but
the Commonwealth attorney put Defendant on the phone with Desiderio when he appeared to
have misgivings regarding his cooperation. Desiderio stated that he reviewed everything with
Defendant again and explained the agreement once more. Desiderio testified that Defendant's
misgivings were based upon pressure from family and neighborhood friends, and that Defendant
was feeling nervous about testifying against close friends. Desiderio stated that at no time during
the guilty plea hearing did he feel as though Defendant was not satisfied with his representation
or that Defendant did not understand the nature of the proceedings. Id. at 13 7-164.
After hearing argument from both counsel and reviewing the transcript from the guilty
plea colloquy on the record, this Court denied Defendant's motion to withdraw his plea, finding
that he knowingly, intelligently and voluntarily pled guilty, that he was satisfied with his
lawyer's representation at the time of his plea, and that Defendant actively participated in
preparing and placing himself on the crime scene map used at Hutchins, and Johnson's trial. Id.
at 172-179.
On November 17, 2015, Hutchins, and Johnson's trial resumed. Subsequently, the jury
found Hutchins and Johnson not guilty on all charges.
7 On May 3, 2016, newly appointed defense counsel Jason Kadish, Esquire, filed another
Petition to Withdraw Guilty Plea. This Court denied the petition at Defendant's sentencing on
November 14, 2016. This Court stated on the record:
And I'm going to put in the record that I've extensively reviewed any mental health issues with the defendant on the record at the time I took the guilty plea on November 3, 2015, and that review of that circumstance is clearly spelled out in the colloquy that I had with the defendant. And therefore, there is absolutely no reason for me to do anything any different than what I did before, and I stand by my decision to deny the withdrawal of the guilty plea.
(N.T. 11/14/16, p. 7·8).
On November 14, 2016, Defendant appeared before this Court for sentencing. Defense
counsel recommended a sentence of 15 to 20 years state incarceration. The Commonwealth
recommended a sentence of 30 to 60 years state incarceration. This Court sentenced Defendant
to 20 to 40 years state incarceration on the charge of Third-degree Murder, plus 5 to 10 years
state incarceration on the charge of Criminal Conspiracy, for an aggregate term of25 to 50 years
state incarceration. Defendant was ordered to receive dual diagnosis treatment, undergo random
urinalysis, obtain his GED and enroll in a job training program while imprisoned. This Court
further ordered Defendant to seek and maintain employment upon release and pay all mandatory
court costs. Id. at 29.
On December 5, 2016, Defendant filed a Notice of Appeal to Superior Court. After
resolving issues regarding court-appointment of defense counsel and obtaining all notes of
testimony, this Court ordered Defendant to file a Concise Statement of Errors Complained of on
Appeal Pursuant to P.A. R.A.P. 1925(b). Newly appointed appellate counsel John Belli, Esquire
did so on March 27, 2017. Mr. Belli indicated that he intended to file an Anders Brief and that
Defendant intended to raise the following issue on appeal: "The Honorable Court committed an
8 abuse of discretion by refusing to permit Appellant to withdraw his guilty plea because the plea
was entered unknowingly, unintelligently, and involuntarily due to ineffective assistance of
counsel and the fact that appellant was suffering from mental illness at the time he entered his + .... -- .. -----··-·---·-·---------------------------·----·-----· ••
plea and had not taken necessary medication the night before he [entered] his guilty plea."
ISSUE
I. WHETHER THIS COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA.
DISCUSSION
I. THIS COURT PROPERLY DENIED DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA BECAUSE THE TRANSCRIPT FROM DEFENDANT'S GUILTY PLEA COLLOQUY, AS WELL AS TESTIMONY FROM DEFENSE COUNSEL AND THE COMMONWEALTH REGARDING THE MEMORANDUM OF AGREEMENT, DEMONSTRATED THAT DEFENDANT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY PLED GUILTY TO TIDRD DEGREE MURDER.
This Court properly denied Defendant's motion to withdraw guilty plea because the
record demonstrated that Defendant knowingly, intelligently, and voluntarily decided to plead
guilty after entering into a Memorandum of Agreement with the Commonwealth. Defendant
claims that his guilty plea was not voluntary due to ineffective assistance of counsel and because
Defendant suffered from mental illness, had not taken his medication on the days when he signed
the Memorandum of Agreement, met with the Commonwealth to prepare for trial, and appeared
in Court to plead guilty. This claim is without merit.
As a threshold matter, Defendant's claim of ineffective assistance of counsel is
premature, as this claim is not cognizable on direct appeal. In Commonwealth v. Holmes, the
9 Pennsylvania Supreme Court reaffirmed the Grant1 rule, holding that "claims of ineffective
assistance of counsel are to be deferred to PCRA review; trial courts should not entertain claims
of ineffectiveness upon post-verdict motions; and such claims should not be reviewed upon
direct appeal." 79 A.3d 562 (Pa.2013). The Court carved out two narrow exceptions:
( 1) "extraordinary circumstances where the trial court, in the exercise of its discretion,
determines that a claim (or claims) of ineffective assistance is both meritorious and apparent
from the record so that immediate consideration and relief is warranted;" and (2) where, upon
good cause shown and where the defendant expressly waives his right to seek PCRA review,
"the defendant seeks to litigate multiple or prolix claims of counsel ineffectiveness, including
non-record-based claims, on post-verdict motions and direct appeal." Id. at 563-64, 577-78.
Neither of these narrow, extraordinary exceptions are present in the case at bar. Therefore,
Defendant's ineffective assistance of counsel claim should be deemed premature as it is not
cognizable on direct appeal.
Even if not premature, no relief is due. Defendant's claim that his mental health issues
prevented him from knowingly, intelligently and voluntarily pleading guilty is entirely without
merit. Under Pennsylvania law, "at any time before the imposition of sentence, the court may, in
its discretion, permit, upon motion of the defendant, or direct, sua sponte, the withdrawal of a
plea of guilty or nolo contendere and the substitution of a plea of not guilty." Pa. R. Crim. P.
Eq t (A.). There is no absolute right to withdraw a guilty plea; rather, the trial court has discretion
in determining whether the defendant's request should be granted. Commonwealth v.
Carrasguillo, 115 A.3d 1284 at 1291·92 (Pa. 2015) (citing Commonwealth v. Forbes, 450 Pa.
185, 190, 299 A.2d 268, 271 (1973)). A trial court's decision whether to permit a guilty plea to
be withdrawn should not be disturbed absent an abuse of that discretion. Commonwealth v. I Commonwealth v. Grant 572 Pa. 48, 813 A.2d 726 (2002).
10 Prysock, 972 A.2d 539, 541 (Pa. Super. 2009). "An abuse of discretion exists when a defendant
shows any 'fair and just' reasons for withdrawing his plea absent 'substantial prejudice' to the
Commonwealth." Commonwealth v. Elia, 83 a.3d 254, 261 (Pa. Super. 2013) (quoting -------------------=����==�����=
Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa. Super. 2011)).
The Pennsylvania Supreme court in Carrasquillo outlined the standard a trial court should
use when exercising its discretion regarding a motion to withdraw a guilty plea: "More broadly,
the proper inquiry on consideration of such a withdrawal motion is whether the accused has
made some colorable demonstration, under the circumstances, such that permitting withdrawal of
the plea would promote fairness and justice. The policy of liberality remains extant but has its
limits, consistent with the affordance of a degree of discretion to the common pleas court."
Carrasguillo, 115 A.3d at 1292. "A sincere and plausible assertion of innocence has been held to
satisfy the 'fair and just reason' standard" for granting a pre-sentence motion to withdraw a
guilty plea. Id.
The trial court must also examine whether the prosecution would suffer "substantial
prejudice" should the court grant the defendant's request to withdraw his guilty plea. It is well
settled that substantial prejudice to the Commonwealth, in the context of withdrawing a guilty
plea, requires a "showing that, due to events occurring after the plea was entered, the
Commonwealth is placed in a worse position than it would have been had trial taken place as
scheduled." Commonwealth v. Blango, 150 A.3d 45, 51 (Pa.Super.2016) (citing Commonwealth
v. Kirsch, 930 A.2d 1282, 1286 (Pa.Super.2007)). Substantial prejudice exists where a defendant
"obtains a full preview of the Commonwealth's evidence before deciding upon [his] trial
strategy." Blango, 150 A.3d at 51 (quoting Commonwealth v. Prendes, 97 A.3d 337, 353 (Pa.
Super. 2014).
11 In addition, the 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. Reid, 117
A.3d 777, 783 (2015)(quoting Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super.2003)).
The Pennsylvania Superior Court explained:
(O]nce a defendant has entered a plea of guilty it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him. Therefore, where the record clearly demonstrates that a guilty plea colloquy was conducted, during which it became evidence that defendant understood the nature of the charges against him, the voluntariness of the plea is established. 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 pied.
Commonwealth y. McCauley, 797 A.2d�l0 (Pa.Super. 2001) (quoting Commonwealth v. Stork,
737 A.2d 789, 790-91 (Pa.Super.1999), appeal denied 564 Pa. 709, 764 A.2d 1068 (2000))
( emphasis added). A "written plea colloquy that is read, completed and signed by the defendant
and made part of the record may serve as the defendant's plea colloquy when supplemented by
an oral, on-the-record examination." Reid, 117 A.3d at 782 (citing Commonwealth v. Morrison,
878 A.2d 102, 108 (Pa.Super.2005); Pa.R.Crim.P. 590, Comment. "[A] plea of guilty will not be
deemed invalid if the circumstances surrounding the entry of the plea disclose that the defendant
had a full understanding of the nature and consequences of his plea and that he knowingly and
voluntarily decided to enter the plea." Reid, supra (quoting Commonwealth v. Fluharty, 429
Pa.Super.213, 632 A.2d 312, 315 (1993)). "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. McCauley, supra (citing Commonwealth v. Yeager, 454
Pa.Super.428, 685 A.2d 1000, 1004 ( 1996), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997)).
12 In order to determine "the voluntariness of the plea and whether the defendant acted knowingly
and intelligently, the trial court must, at a minimum, inquire into the following six areas:
(I) Does the defendant understand the nature of the charges to which he is pleading - ·�-· . " . __ ,,, __ --·-- ,_... , :;...--=--.--=::.:...:.=.: ··--·. ---····· ----
guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has a right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until he is found guilty?
(5) Is the defendant aware of the permissible ranges 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?"
McCauley, supra, (citing Commonwealth v. Young, 695 A.2d 414, 417 (Pa.Super.1997)). The
law "does not require that [the defendant] be pleased with the outcome of his decision to enter a
plea of guilty: All that is required is that [his] decision to plead guilty be knowingly, voluntarily
and intelligently made." Reid, supra (quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192
(Pa.Super.2010)).
In Stork, the court found the defendant failed to meet his burden where the defendant
participated in a complete and thorough written colloquy which was followed by a lengthy oral
colloquy, and where the defendant was specifically asked whether he was satisfied with counsel
and whether his plea was entered into voluntarily and defendant answered in the affirmative. In
Commonwealth v. Kasecky, the court held that the defendant was not entitled to relief where he
did not inform the court he was taking medication during his oral on-the-record guilty plea
colloquy and later failed to proffer any expert testimony that the medication he was taking
13 rendered him incapable of entering a knowing and intelligent plea. 442 Pa.Super. 139, 143
(1995). The court noted in a footnote that the in written guilty plea colloquy, the defendant in
Kasecky "acknowledged being on medication; that he, nonetheless, was able to understand the
questions and answer them correctly; and that he both fully understood the questions and his
decision to plead guilty." Id. at 143 n.2. Last, in Reid, the court found the defendant voluntarily
and intelligently entered into his guilty plea where defendant confirmed he understood the terms
of the agreement, the trial court conducted a lengthy guilty plea colloquy in which the defendant
fully participated, the trial court explained defendant's right to trial by jury, his post-guilty plea
appellate rights and defendant indicated he understood, and the Commonwealth provided a
lengthy factual bases for each charge after which defendant admitted he was guilty. 117 A.3d at
783.
In the case at bar, Defendant has failed to demonstrate that permitting him to withdraw
his guilty plea would promote fairness and justice. Defendant has made no claim that he is
actually innocent of the crimes charged. Instead, he claims that his lawyer was ineffective for
failing to explain to him the significance and consequences of the Memorandum of Agreement
and associated guilty plea. He further claims that he was not taking his mental health medications
on the days he signed the Memorandum of Agreement, met with the Commonwealth to prepare
to testify at his co-conspirators' trial, and appeared before this Court to plead guilty, and
therefore was not lucid and had no idea what he was doing. These claims are entirely without
merit as they are not supported by the totality of the circumstances surrounding his plea.
Defendant claims that trial counsel Mr. Desiderio never explained the guilty plea or the
Memorandum of Agreement to him. He claims that he did not understand that he was pleading
guilty or to what he was pleading guilty. This claim is belied by the record. At the guilty plea
14 hearing on November 3, 2015, Defendant reviewed the written guilty plea colloquy with his
attorney and signed it. This Court then conducted an extremely thorough on-the-record colloquy,
addressing areas outlined above. This Court asked Defendant several questions regarding the
nature of the charges, the factual basis for the plea, the permissible sentencing ranges, the right to
a trial by jury, and explained that defendant is presumed innocent until found guilty. This Court
further inquired as to Defendant, s level of education and ability to read and write the English
language. In addition, this Court extensively questioned Defendant regarding his mental health:
THE COURT: Have you ever been a patient in a mental institution or been treated for mental illness?
DEFENDANT: Yes.
THE COURT: And when was that?
DEFENDANT: I don't know.
THE COURT: You don't know?
DEFENDANT: I wasn't in a mental hospital but I got mental health problems.
THE COURT: Okay. What is the nature of your mental health problems?
DEFENDANT: My mom said - my mom know better.
MR. DESIDERIO: I was informed, by -
THE COURT: Okay. Just one minute. The trial sheet-the trial list says ADHD, schizophrenia, and depression with special considerations. So you reported this to someone else already, right?
THE COURT: This is on your sheet.
THE COURT: This is on your sheet. Everybody has it.
15 THE COURT: So what's written on the sheet says other - special considerations, other, ADHD, schizophrenia, and depression.
,a - -,c.=,=- _,c.c�--�=- THE.COURT·,=·"� Can you tell me, is it all three of these.or.e., _ ----------- -- -- .--- -- -- . _
DEFENDANT: All three.
THE COURT: And when did you-when were you first diagnosed with these conditions.
DEFENDANT: I'm not sure.
THE COURT: You're not sure. How old - you're 25 now. So how many years have you had these conditions?
DEFENDANT: Since I was 11.
THE COURT: Since you were 11. Are you taking medication?
THE COURT: What medication are you taking?
DEFENDNAT: Zyprexin and Benadryl.
THE COURT: How often do you take it?
DEFENDANT: Every night.
THE COURT: Okay. So you took it last night?
DEFENDANT: No, I was down in Homicide.
THE COURT: Okay. So when's the last time you took your medication?
DEFENDANT: The day before.
THE COURT: The night before?
DEFENDANT: Yeah.
THE COURT: And when you take your medication, what does it do for you?
DEFENDANT: Mellow, calm.
16 THE COURT: Okay. Do you understand why you're here today?
DEFNEDANT: Yes.
THE COURT: Why are you here today?
DEFENDANT: Enter a guilty plea.
THE COURT: And to what charge?
DEFENDANT: Third degree.
THE COURT: All right, sir. And so, basically what you're saying is that right now you understand what you're doing?
THE COURT: And you've had a conversation with your lawyer about it?
THE COURT: And with your mental health issues you are - you still understand and your medications are working for you?
THE COURT: So right now you understand everything that's been said and done so far today?
THE COURT: And right now there are no mental health conditions that would prevent you from continuing with this plea?
DEFENDANT: No.
THE COURT: Okay. And are you satisfied with the representation of your lawyer up to this point?
(N.T. 11/3/15, p. 5-9) (emphasis added). Defendant has failed to meet his burden as proof as he
has failed to provide any evidence that did not know what he was doing. The record is clear that
Defendant understood the nature of the charges against him; therefore, the voluntariness of the
17 plea has been established. There is nothing in the record that indicates that Defendant was
confused, disoriented, incoherent or in any way disconnected from reality. To the contrary,
Defendant appropriately engaged with the Court, answered questions in a lucid, coherent . _. ._ ····-·-..=.:;..::..;-·---=-.. ----- -·---··· �·--·· ------·-----··--·· -
manner, and informed the Court that he was present to plead guilty to third degree murder. As
stated above, a defendant is bound by the statements he makes during his guilty plea colloquy
and may not assert grounds for withdrawing the plea that contradict statements that he made.
McCauley, supra. There is no requirement that Defendant be pleased with the outcome of his
decision to plead guilty, "[a]ll that is required is that [his] decision to plead guilty be knowingly,
voluntarily and intelligently made." Reid, supra. Accordingly, this Court's decision to deny
Defendant's motion to withdraw guilty plea should be affirmed.
With respect to the Memorandum of Agreement, at the hearing regarding Defendant's
motion to withdraw guilty plea, testimony from Assistant District Attorney Zarallo and Mr.
Desiderio refuted Defendant's claim that no one ever explained the agreement to him and that he
had no idea that he would be testifying against his co-conspirators. Their testimony shows that
Defendant spent approximately 4 Yz hours at the District Attorney's Office with Mr. Desiderio, at
which time they negotiated the agreement. Mr. Desiderio testified that he read aloud and
explained each component of theagreement to Defendant in common parlance and answered any
questions he had. Mr. Zarallo testified that he left Defendant and Mr. Desiderio alone in a room
for nearly 45 minutes so they could review the agreement and then make any suggestions for
changes that needed to be made. A review of the Memorandum of Agreement itself shows that it
includes a provision that Defendant was expected to "testify truthfully and completely before any
Grand Jury and at any hearing or trial in any case in which the District Attorney requests him to
testify." Memorandum of Agreement, signed by Defendant on 11/2/15. Three days later,
18 Defendant returned to the District Attorney's Office to prepare for trial. Desiderio testified that
Defendant called him during that meeting to discuss his apprehensions regarding testifying
against his friends, thus showing that Defendant knew and understood that he would be testifying
as part of his Memorandum of Agreement. Thus, the record more than sufficiently demonstrates
that Defendant knowingly, intelligently and voluntarily pied guilty to third degree murder. There
is nothing to support his claim that any mental illness or failure to take his medication in any way
affected his ability to comprehend the details of the Memorandum of Agreement or the guilty
plea. In addition, there is no evidence that Mr. Desiderio failed to explain the agreement and
guilty plea to Defendant. Accordingly, this Court's judgment of sentence should be affirmed.
Even if Defendant could demonstrate a fair and just reason for withdrawing his guilty
plea, which he cannot, allowing him to do so would cause the Commonwealth to suffer
substantial prejudice. The Commonwealth simply would not be put back into the same position it
would have been prior to Defendant's guilty plea, as Defendant was aware already of the
Commonwealth's evidence, trial strategy, and knew the outcome of Hutchins' and Johnson's
trial. By changing his mind regarding his guilty plea only after he had assisted the
Commonwealth prepare for trial, Defendant had a full preview of the Commonwealth's evidence
before deciding his own trial strategy. Defendant had provided evidentiary details to the
Commonwealth, including adding details to the crime scene map used at Hutchins' and
Johnson's trial. Furthermore, Defendant participated as a witness at Hutchins' and Johnson's trial
and knew that the outcome of their trial was a verdict of not guilty on all charges. With all of this
additional information, Defendant regretted his decision to plead guilty. He wanted to go to trial
since he knew his co-conspirators had received a favorable outcome, in large part, due to his
decision to "go south" and deny that Hutchins and Johnson were involved at all in the shooting
19 death of the victim. Thus, Defendant's desire to withdraw his guilty plea was simply an attempt
to manipulate the system. Allowing Defendant to withdraw his plea would be unfair to the
Commonwealth and would substantially impair their ability to fairly prosecute Defendant. = ·--·� -- = - ·····= - · - ·-·= ����=·= ·--·· - - ···- -·-- - - -� ·--·--� --- - -= - · - ····-···-- ···---·· ·····--
Therefore, this Court properly denied Defendant's motion to withdraw his guilty plea and this
decision should not be disturbed on appeal.
20 CONCLUSION
After review of the applicable statutes, testimony, and case law, this Court committed no
error. This Court properly denied Defendant's motion to withdraw guilty plea. Accordingly, this -=.... �,._ ··-····-----------····------------·-----
Court, s judgment of sentence should be affirmed.
BY THE COURT:
�J.