J-S12039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDREW SMALLWOOD                           :
                                               :
                       Appellant               :   No. 598 EDA 2019

        Appeal from the Judgment of Sentence Entered February 11, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0010299-2011


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                FILED APRIL 28, 2020

        Appellant, Andrew Smallwood, appeals from the judgment of sentence

imposed after he pleaded guilty to third degree murder1 and other offenses.

We affirm.

        On April 16 2011, Appellant was charged with murder, conspiracy,

retaliation against and intimidation of a witness or victim, and weapons and

firearms offenses for the shooting death of Malik Martin (Victim). On February

11, 2016, Appellant entered a negotiated plea of guilty to third-degree

murder, conspiracy, possession of an instrument of crime (PIC), retaliation


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*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. § 2502(c).
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against a witness or victim, and firearms not to be carried without a license2

and was sentenced to an aggregate term of imprisonment of 35 to 70 years

in accordance with the plea agreement. N.T., 2/11/16, at 2-3, 34-38; Written

Guilty Plea Colloquy.        This aggregate sentence consisted of consecutive

sentences of 20 to 40 years for third-degree murder, 10 to 20 years for

conspiracy, 21/2 to 5 years for PIC, 21/2 to 5 years for firearms not to be carried

without a license, and no further penalty for retaliation against a witness or

victim. N.T., 2/11/16, at 38; Order of Sentence, 2/11/16.

        Appellant did not file a direct appeal within 30 days, but filed a petition

pursuant to the Post Conviction Relief Act (“PCRA”)3 on March 17, 2016

seeking reinstatement of his appeal rights. On January 15, 2019, the trial

court granted that PCRA petition and reinstated Appellant’s rights to file a

post-sentence motion and a direct appeal. On January 22, 2019, Appellant

filed a post-sentence motion seeking to withdraw his guilty pleas, which the

trial court denied on January 23, 2019.          On February 11, 2019, Appellant

timely filed this appeal.

        Appellant presents only one issue for our review:

        Whether the trial court erred in allowing a guilty plea which stated
        insufficient facts to support a finding of third degree murder.

Appellant’s Brief at 4. We conclude that this claim of error is without merit.


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2   18 Pa.C.S. §§ 903, 907(a), 4953(a), and 6106(a)(1), respectively.
3   42 Pa.C.S. §§ 9541–9546.

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      By pleading guilty, Appellant waived his right to challenge on direct

appeal all non-jurisdictional defects except for the legality of his sentence and

the validity of his plea. Commonwealth v. Jabbie, 200 A.3d 500, 505 (Pa.

Super. 2018); Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa.

Super. 2008). To establish that a guilty plea is valid, the plea colloquy must

ascertain the factual basis for the plea, and that the defendant understands

the nature of the charges to which he is pleading guilty, his right to a jury

trial, the presumption of innocence, the sentencing ranges for the charges,

and the plea court’s power to deviate from any recommended sentence.

Jabbie, 200 A.3d at 506; Commonwealth v. Reid, 117 A.3d 777, 782 (Pa.

Super. 2015); Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super.

2005); Comment to Pa.R.Crim.P. 590(A)(2).

      All of those requirements were satisfied here. At the plea hearing, the

trial court explained at length the elements of the charges to which Appellant

was pleading guilty, his right to a jury trial, the presumption of innocence, the

sentencing ranges for the charges, and the court’s power to deviate from any

recommended sentence, and ascertained Appellant’s ability to understand the

proceedings and the voluntariness of his decision to plead guilty.         N.T.,

2/11/16, at 2-24. In addition, the Commonwealth set forth a summary of the

facts on which the guilty pleas were based. Id. at 25-34, 38-39. Appellant’s

guilty pleas accordingly constitute an admission of all of those facts.

Morrison, 878 A.2d at 105-06.


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      Contrary to Appellant’s contention, the facts set forth by the

Commonwealth at the plea hearing are plainly sufficient to support a finding

that Appellant was guilty of third-degree murder. At the plea hearing, the

Commonwealth set forth the following factual basis for Appellant’s guilty plea

to third degree murder:

      [On]April 6, 2011, Wednesday, about 1:00 in the afternoon in the
      vicinity of the 5300 block of Cedar Avenue in the City and County
      of Philadelphia…, the evidence would show, videotape would be
      introduced, which would show that [Victim] was operating a SUV-
      type vehicle westbound on Cedar Avenue of [sic] 53rd and the
      video would show two individuals firing at his vehicle with a semi-
      automatic handgun and a revolver.

      … Officers, in particular, Officer Robin Summers would testify as a
      result of those gunshots, she observed two black males, one in a
      blue hoodie, one in a gray hoodie, flee in her direction southbound
      on 53rd Street and then proceed westbound on Walton Avenue.
      She pursued the individual in the blue hoodie sweatshirt in her
      vehicle with her partner. She got out of her vehicle at the top of
      the block, looked under vehicles and at that time she would
      identify [Appellant] who was beginning to crawl under an SUV
      vehicle on the street.

      She ordered him to come out from under the vehicle. There was
      hesitation. He did. [Appellant] fled on foot in the blue hoodie
      westbound on Cedar. Officers pursued, radio contact, other
      officers, in particular, Officer Ray Lacey, 18th District, observed
      [Appellant] coming out of the alley, fleeing northbound where he
      was apprehended, attempting to get into another vehicle at a red
      light.

      Officer Robin Summers came around, made a positive
      identification of [Appellant] as the individual she was pursuing.
      [Appellant] was frisked, placed in the wagon. Officers then went
      back to the vehicle [Appellant] was hiding under. Recovered at
      that time, Your Honor, was a Smith & Wesson, caliber, .357, which
      was secured until the arrival of crime scene unity officers.

                          *         *           *

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      … DNA samples were taken from the firearm which was located
      under the vehicle which [Appellant] was hiding.

      Your Honor, as a result of the processing of that, there was a
      positive DNA match … I think the actual DNA report indicates that
      the DNA swab from the Smith & Wesson, .357 to [Appellant] was
      I think probability of randomly selected unrelated individual,
      include as a contributor, major component of the DNA mixture,
      the sample is 1 in 153 quintillion in the African-American
      population.

      Additionally, Your Honor, the weapon that was recovered under
      the vehicle was compared ballistically with bullets taken from
      [Victim]’s vehicle and six bullets were found to definitively come
      from the Smith & Wesson, a gun that had [Appellant]’s DNA. All
      six of the bullets were recovered from that vehicle that [Victim]
      was operating.

N.T., 2/11/16, at 29-33. The Commonwealth further stated that the evidence

would show that Victim was killed by gunshot wounds suffered in the attack.

Id. at 33.    In addition, the Commonwealth stated that Appellant had

previously robbed Victim at gunpoint and had threatened Victim after Victim

had identified Appellant as the robber. Id. at 25-28.

      These facts were sufficient to prove third-degree murder. To establish

the offense of third-degree murder, the Commonwealth must prove the killing

of an individual with malice. Commonwealth v. Knox, 219 A.3d 186, 195

(Pa. Super. 2019); Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa.

Super. 2009). Malice includes not only particular ill will toward the victim, but

also wickedness of disposition, hardness of heart, wantonness, and cruelty,

recklessness of consequences, and conscious disregard by the defendant of

an unjustified and extremely high risk that his actions may cause serious

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bodily harm.    Commonwealth v. Young, 431 A.2d 230, 232 (Pa. 1981);

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011).

Evidence that the defendant fired a gun directly at the victim is sufficient to

show malice. Young, 431 A.2d at 232; Commonwealth v. Patterson, 180

A.3d 1217, 1230 (Pa. Super. 2018); Devine, 26 A.3d at 1150.

      Here, the facts set forth by the Commonwealth and admitted by

Appellant by his plea establish that Appellant and another person with him

repeatedly fired guns at Victim and that Victim was killed by that gunfire. That

is sufficient to show both that Appellant was criminally responsible for killing

Victim and that he acted with malice. Indeed, Appellant’s prior threats against

Victim also show particular ill will toward Victim. While the facts set forth at

the guilty plea hearing did not show whether the shots fired by Appellant were

the ones that killed Victim, it was unnecessary for the Commonwealth to prove

that Appellant fired the fatal shot or shots. Where there is sufficient evidence,

as here, to prove that the defendant acted together with another person or

persons to fatally attack the victim, the defendant is guilty of third degree

murder even if he did not fire the fatal shot or strike the fatal blow.

Commonwealth v. Fisher, 80 A.3d 1186, 1195-96 (Pa. 2013); Marquez,

980 A.2d at 149; Commonwealth v. Bigelow, 611 A.2d 301, 304 (Pa.

Super. 1992).

      Because the factual basis set forth by the Commonwealth at Appellant’s

plea hearing was sufficient to support a finding of third-degree murder,


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Appellant’s challenge to the validity of his guilty plea is without merit.

Accordingly, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2020




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