Com. v. Mc Duffie, G.

• Court: Superior Court of Pennsylvania
• Decided: September 17, 2020
• Docket: 299 EDA 2019
• Status: Unpublished

Opinion

J-A21026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-A21026-20

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

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.

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 ____________________________________________

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

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

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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