Com. v. McIntosh, M.

• Court: Superior Court of Pennsylvania
• Decided: October 11, 2018
• Docket: 2052 EDA 2017
• Status: Unpublished

Opinion

J-S41039-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MYRON FALIK MCINTOSH : : Appellant : No. 2052 EDA 2017

Appeal from the Judgment of Sentence May 23, 2017 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001950-2017

BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 11, 2018

Appellant, Myron Falik McIntosh, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his

negotiated guilty plea to one count of false identification to law enforcement.1

We affirm and grant counsel’s petition to withdraw.

The relevant facts and procedural history of this case are as follows.

Upper Darby police responded to the report of Siobhan Andrews, on the

afternoon of June 19, 2016, that Appellant was inside her residence. His

presence in the residence constituted a violation of a Protection From Abuse

(“PFA”) order that barred Appellant from the residence. When the police

arrived, they checked the apartment but could not locate Appellant. While

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1 18 Pa.C.S.A. § 4914 (graded as a third degree misdemeanor). ____________________________________ * Former Justice specially assigned to the Superior Court. J-S41039-18

outside, however, Ms. Andrews pointed to a male walking in the area and

identified him as Appellant. In full uniform, Officer Bennett approached

Appellant and advised him that Officer Bennett was investigating Appellant’s

alleged violation of a PFA order at Ms. Andrews’ residence and that Ms.

Andrews had identified Appellant as the violator. Officer Bennett then asked

Appellant if he was Myron McIntosh. Appellant denied it and said his name

was Aaron Johnson. Officer Bennett asked Appellant for identification;

Appellant said he did not carry any. Officer Bennett called attention to

Appellant’s wallet protruding from the rear pocket of his shorts. Appellant

produced his wallet, which contained credentials identifying him as Myron

McIntosh. (See Affidavit of Probable cause, filed 6/19/16.) The

Commonwealth charged Appellant with false identification to law enforcement.

On May 23, 2017, Appellant entered a negotiated guilty plea (including

sentence) to the offense charged. The court accepted the plea and imposed

the negotiated sentence of time served (ten days) to six months’ incarceration

and immediately paroled Appellant.2 At Appellant’s request, the court also

allowed Appellant to travel to Florida for involvement in his son’s athletic

activities.

Appellant timely filed a notice of appeal on June 21, 2017. The trial

2 The certified record indicates Appellant later violated his parole and was recommitted.

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court ordered Appellant on June 23, 2017, to file a concise statement of errors

complained of on appeal, per Pa.R.A.P 1925(b). Counsel timely filed a Rule

1925(c)(4) statement of intent to file an Anders3 brief. Counsel filed a

petition for leave to withdraw as counsel and an Anders brief in this Court on

May 23, 2018. Appellant has filed no response.

As a preliminary matter, counsel seeks to withdraw representation

pursuant to Anders, supra 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).

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 ____________________________________________

3 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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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.

* * *

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. After verifying that counsel has met the

antecedent requirements to withdraw, this Court makes an independent

review of the record to confirm the appeal is wholly frivolous.

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also

Commonwealth v. Dempster, 2018 PA Super 121 (filed May 8, 2018) (en

banc).

Instantly, Appellant’s counsel filed a petition to withdraw, which 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

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brief and a letter explaining Appellant’s right to retain new counsel, or to

proceed pro se and raise any additional issues Appellant deems worthy. (See

Letter to Appellant, dated 5/23/18, attached to counsel’s application to

withdraw, filed on the same date). 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 possibly support Appellant’s issue. Counsel

further states the reasons for his conclusion that the appeal is wholly frivolous.

Therefore, counsel has substantially complied with the requirements of

Anders and Santiago.

Counsel raises the following issue on Appellant’s behalf:

THE COMMONWEALTH FAILED TO PROVIDE SUFFICIENT EVIDENCE THAT [APPELLANT] COMMITTED THE OFFENSE OF FALSE IDENTIFICATION TO A LAW ENFORCEMENT OFFICER FOR HIM TO BE CONVICTED. THE EVIDENCE WAS INSUFFICIENT BECAUSE IT FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT [APPELLANT] WAS UNDER A CRIMINAL INVESTIGATION BY THE OFFICERS OF THE UPPER DARBY POLICE AND THAT THEY NOTIFIED HIM OF THAT.

(Anders Brief at 5).

Appellant claims the evidence was insufficient to show the police

informed him that he was under investigation for a violation of the law and

the evidence was also unclear as to the nature of the investigation taking place

at the time of his arrest. Put another way, Appellant seems to be attacking

the factual basis for his plea. We conclude no relief is due.

“Generally, a plea of guilty amounts to a waiver of all defects and

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defenses except those concerning the jurisdiction of the court, the legality of

the sentence, and the validity of the guilty plea.” Commonwealth v.

Morrison, 173 A.3d 286, 290 (Pa.Super. 2017); Commonwealth v. Main,

6 A.3d 1026 (Pa.Super. 2010) (stating same). Thus, by entering a guilty plea

the defendant routinely waives an array of constitutional and appellate rights,

including a direct challenge to the sufficiency of the evidence, which is a non-

jurisdictional issue. See generally Commonwealth v. Lincoln, 72 A.3d

606, 610 (Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014).

Instead, the defendant must focus his complaint on the validity of the

plea proceedings and to test the voluntariness of his guilty plea on direct

appeal the defendant must either object during the plea colloquy or file a

motion to withdraw the plea before sentencing or within ten days of

sentencing. See id. See also Pa.R.Crim.P. 591 (allowing for application to

withdraw plea upon written or oral motion of defendant at or before

sentencing); Pa.R.Crim.P. 720 (allowing for post-sentence challenge to guilty

plea, and recommending that challenge be presented in post-sentence

motion, if not previously raised). Absent extraordinary circumstances, the

failure to employ either measure results in waiver. Commonwealth v.

Tareila, 895 A.2d 1266, 1270 n.3 (Pa.Super. 2006).

Historically, Pennsylvania courts adhere to this waiver principle because “[i]t is for the court which accepted the plea to consider and correct, in the first instance, any error which may have been committed.” Commonwealth v. Roberts, [352 A.2d 140, 141 (Pa.Super. 1975)] (holding that common and previously condoned mistake of attacking

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guilty plea on direct appeal without first filing petition to withdraw plea with trial court is procedural error resulting in waiver; stating, “(t)he swift and orderly administration of criminal justice requires that lower courts be given the opportunity to rectify their errors before they are considered on appeal”; “Strict adherence to this procedure could, indeed, preclude an otherwise costly, time consuming, and unnecessary appeal to this court”).

Lincoln, supra at 610 (holding defendant failed to preserve challenge to

validity of guilty plea where he did not object during plea colloquy or file post-

sentence motion to withdraw plea). Further, “a defendant who attempts to

withdraw a guilty plea after sentencing must demonstrate prejudice on the

order of manifest injustice before withdrawal is justified.” Id.

If the defendant properly preserves his opposition to the validity of the

plea process, courts evaluate “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). A guilty plea will be

deemed valid if that examination demonstrates the defendant had a full

understanding of the nature and consequences of his plea such that he

knowingly and intelligently entered the plea of his own accord.

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006).

As part of the inquiry, courts examine the factual basis for the plea.

Commonwealth v. Fluharty, 632 A.2d 312, 315 (Pa.Super. 1993).

However, the “factual basis” requirement does not mean that the defendant must admit every element of the crime. In this respect, the United States Supreme Court has held:

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[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.

Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.

North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970). See Commonwealth v. Cottrell, 433 Pa. 177, 179, 249 A.2d 294, 295 (1969) ([stating:] “[W]here there is significant evidence of guilt…and the accused, after adequate consultation with his counsel, decides to plead guilty, that plea is not rendered invalid merely because the accused is unable or unwilling to detail the occurrence in court”).

Id. (some internal quotations and citations omitted). An affidavit of probable

cause can serve as a factual basis to support a guilty plea. See generally

Fluharty.

The Crimes Code defines the offense of false identification to law

enforcement as follows:

§ 4914. False identification to law enforcement authorities

(a) Offense defined.−A person commits an offense if he furnishes law enforcement authorities with false information about his identity after being informed by a law enforcement officer who is in uniform or who has identified himself as a

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law enforcement officer that the person is the subject of an official investigation of a violation of law.

(b) Grading.−An offense under this section is a misdemeanor of the third degree.

18 Pa.C.S.A. § 4914. This Court recently interpreted this statute to require

law enforcement, so identified by uniform or adequate communication, to

advise the defendant expressly that he is the subject of an official

investigation, before the defendant gives the offending false identification, in

order to sustain a conviction for false identification to law enforcement

authorities. Commonwealth v. Kitchen, 181 A.3d 337 (Pa.Super. 2018) (en

banc). The attendant circumstances alone are often inadequate to satisfy the

statute and support a conviction for false identification. Id.

Instantly, there is no dispute that the Delaware County Court of

Common Pleas, Criminal Division, had jurisdiction over the offense and the

plea/sentencing proceedings, which all occurred in Delaware County. The

negotiated sentence imposed, of ten days to six months, was below the

statutory maximum of one year for a third-degree misdemeanor (see 18

Pa.C.S.A. § 1104(3)) and consistent with the plea agreement. To the extent

Appellant’s claim on appeal directly attacks the sufficiency of the evidence, he

waived it by entering the plea. See Lincoln, supra. To the extent Appellant’s

claim attacks the factual basis for his plea, Appellant did not object during the

plea proceedings or move to withdraw the plea, so he cannot dispute on

appeal the factual basis for his guilty plea. See id.

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Moreover, the record belies Appellant’s claim. Officer Bennett was in

full uniform when he approached Appellant and advised him that Officer

Bennett was investigating Appellant’s alleged violation of a PFA order at Ms.

Andrews’ residence and that Ms. Andrews had identified Appellant as the

violator. When Officer Bennett asked Appellant his name, Appellant denied

he was Myron McIntosh and said he was Aaron Johnson. When Officer Bennett

asked Appellant for identification, Appellant said he did not carry any. Officer

Bennett observed Appellant’s wallet protruding from the rear pocket of his

shorts. Appellant produced his wallet, which contained credentials identifying

him as Myron McIntosh. As set forth in the affidavit of probable cause, these

circumstances comply with the statute and support Appellant’s plea to the

offense. See 18 Pa.C.S.A. § 4914; Kitchen, supra. Following an

independent review of the record, we agree with counsel that the appeal is

frivolous. Accordingly, we affirm and grant counsel’s petition to withdraw.

Judgment of sentence affirmed; petition to withdraw is granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/11/18

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