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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    MATTHEW EARLY                              :
                                               :
                       Appellant               :      No. 2159 EDA 2019

        Appeal from the Judgment of Sentence Entered October 25, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000769-2013



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    MATTHEW EARLY                              :
                                               :
                       Appellant               :      No. 2160 EDA 2019

        Appeal from the Judgment of Sentence Entered October 25, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000771-2013


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

MEMORANDUM BY KING, J.:                                  Filed: August 13, 2020

        Appellant, Matthew Early, appeals from the judgments of sentence

entered in the Philadelphia County Court of Common Pleas, following his guilty

pleas to attempted murder, possession of an instrument of crime (“PIC”),

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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firearms not to be carried without a license, and carrying firearms in public in

Philadelphia.1 We affirm.

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

December 12, 2012, Appellant and his brother had a verbal altercation with

Tremaine Fortune on a train. When Appellant and his brother exited the train

at a station stop, Appellant turned back toward the train and fired a gun

through the open train door at Mr. Fortune. A bullet struck the abdomen of

Mr. Fortune, who was still on the train. The bullet passed through Mr. Fortune

and struck the leg of Avery Moore, who was behind Mr. Fortune. During the

investigation into the incident, police recovered video surveillance footage of

the shooting. Additionally, Detective Orlando Ortiz interviewed the victims

and had them identify suspects in photo arrays, which included pictures of

both Appellant and his brother.

        The Commonwealth charged Appellant with, inter alia, attempted

murder, PIC, and firearms offenses at two docket numbers. Specifically, the

Commonwealth charged Appellant at docket No. 769-2013 for the offenses

concerning Mr. Fortune and at docket No. 771-2013 for the offenses related

to Mr. Moore. While the criminal complaints charged Appellant as the shooter,

the affidavits of probable cause stated that the victims had identified

Appellant’s brother as the shooter in the photo arrays. Detective Orlando Ortiz



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1   18 Pa.C.S.A. §§ 2502, 907(a), 6106(a)(1), and 6108, respectively.

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was the affiant for both the affidavits of probable cause and the criminal

complaints.

      Prior to Appellant’s preliminary hearing, Appellant filed a motion to

conduct a physical lineup. On January 17, 2013, the court held a hearing on

Appellant’s motion and a preliminary hearing. While discussing Appellant’s

lineup request, the Commonwealth stated: “As the suspect was developed one

day later the detective went to the hospital and/or met up with [the victims]

and showed them photo arrays separately and each [victim] identified

[Appellant] through that photo array one day later.”         (N.T. Preliminary

Hearing, 1/17/13, at 4).      In response, Appellant did not challenge the

prosecutor’s statement or seek clarification as to whether the victims had

identified Appellant as a bystander or the shooter. Appellant also asked the

court to prohibit the Commonwealth from playing the surveillance video to

refresh the victims’ recollection. The court denied Appellant’s lineup motion.

(See id. at 4-5).

      At the preliminary hearing, Mr. Moore testified that during the verbal

quarrel on the train he heard Appellant say, “I have a bullet for everyone on

this train.   I have a bullet for each and every one of you.”      (Id. at 26).

Additionally, both victims testified at the preliminary hearing that they saw

Appellant fire the gun. The parties did not mark as exhibits or move into the

record the photo arrays or the surveillance footage and did not call Detective

Ortiz to testify. Throughout the hearing, Appellant did not question the victims


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about their photo array identifications generally or as described in the

affidavits of probable cause. Appellant also did not request the affidavits or

state he had yet to receive them. Further, Appellant failed to argue that the

evidence did not establish Appellant’s identity as the shooter. Rather, at the

conclusion of the preliminary hearing, defense counsel stated, “I submit that

although there is evidence of a shooting from my client, there isn’t sufficient

evidence to infer that my client attempted to murder these individuals.” (Id.

at 6-41).

      On September 11, 2013, Appellant entered guilty pleas at both docket

numbers cumulatively to two counts each of attempted murder, PIC, firearms

not to be carried without a license, and carrying firearms in public in

Philadelphia.   The court deferred sentencing and ordered a pre-sentence

investigation (“PSI”) report and mental health evaluation.      In May 2014,

Appellant filed pro se a motion to withdraw his guilty plea at docket No. 769-

2013 (crimes related to Mr. Fortune).

      On June 6, 2014, the court declared Appellant incompetent and entered

an involuntary commitment order per the Mental Health Procedures Act, 50

P.S. §§ 7101-7503. The court deemed Appellant competent on July 14, 2016,

and appointed new counsel in December 2016.         The court again declared

Appellant incompetent on June 1, 2017. Appellant filed at each docket number

a motion to withdraw his guilty pleas and a motion to dismiss with prejudice

for prosecutorial misconduct on January 21 and 26, 2018, respectively. The


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court declared Appellant competent on January 29, 2018.

      On March 8, 2018, the court held a hearing on Appellant’s motions.

Regarding his request to withdraw his guilty pleas, defense counsel argued

the surveillance video showed Appellant was not the shooter. Counsel claimed

the video depicts the shorter of the two individuals shooting into the train and

counsel alleged that Appellant is six feet tall.   The court indicated it had

reviewed the surveillance footage and explained it could not gauge the height

of the individuals due the perspective of the video. Counsel noted the victims’

preliminary hearing identification testimony was at odds with the statement

in the affidavits of probable cause that state the victims had identified

Appellant’s brother as the shooter on the photo arrays.       In response, the

Commonwealth explained the affidavits of probable cause inaccurately

described the victims’ photo array selections due to a typographical error. The

Commonwealth submitted that Appellant possessed the completed photo

arrays, on which both victims had circled Appellant’s picture and written

“shooter.” The Commonwealth added that it had lost contact with one victim

and three additional witnesses.

      Regarding his prosecutorial misconduct claim, Appellant alleged the

Commonwealth: (1) withheld discovery and the affidavits of probable cause,

which counsel allegedly discovered only recently; and (2) presented the

victims’ identification testimony at the preliminary hearing knowing it

contradicted the affidavits of probable cause.     Notwithstanding his claims,


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Appellant did not request to reopen the evidentiary record, attempt to present

the testimony of Detective Ortiz, or seek to mark as exhibits and move into

the record the photo arrays and/or surveillance video. (N.T. Motion Hearing,

3/8/18, at 3-15). The court denied Appellant’s motions at the conclusion of

the hearing, on March 8, 2018.

       The court sentenced Appellant at both docket numbers on October 25,

2018, to an overall aggregate term of thirteen and one-half (13½) to twenty-

seven (27) years’ incarceration, plus ten (10) years’ probation. On November

5, 2018, Appellant timely filed a post-sentence motion, which was denied by

operation of law on March 5, 2019. Appellant timely filed notices of appeal at

each docket number on April 3, 2019.2 The court ordered Appellant on August

1, 2019, to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b); Appellant timely complied on August 22, 2019.

       Appellant raises two issues for our review:

          Whether the trial court abused its discretion in denying
          Appellant’s motion[s] to withdraw [his] guilty plea[s], where
          the motion[s] w[ere] filed prior to sentencing and Appellant
          asserted fair and just reasons that he is innocent of
          attempted murder, carrying a firearm without a license, and
____________________________________________


2 Appellant’s notices of appeal list only the respective docket number at which
Appellant filed each notice, in compliance with Commonwealth v. Creese,
216 A.3d 1142 (Pa.Super. 2019). In any event, this Court recently overruled
Creese to the extent that it required the Superior Court to quash appeals
when an appellant files multiple notices of appeal and each notice lists all of
the underlying trial court docket numbers.            See Commonwealth v.
Johnson, ___ A.3d ___, 2020 PA Super 164 (filed July 9, 2020) (en banc).
Thus, Appellant’s notices of appeal are properly before us. As Appellant filed
nearly identical appellate briefs in these appeals, we consider them together.

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         carrying a firearm on public streets, and [PIC], where he
         was not the person responsible for the shooting and not
         charged with conspiracy?

         Whether the trial court abused its discretion in denying
         Appellant’s motion to dismiss with prejudice pursuant to
         [the] Double Jeopardy [Clause] of the Pennsylvania State
         Constitution, for prosecutorial misconduct, where the
         Commonwealth failed to disclose during [Appellant’s] lineup
         motion [hearing] that Appellant was identified by [the
         victims] as [a] mere bystander, not the shooter, who is
         Appellant’s brother, the Commonwealth permitted [the
         victims] to falsely identify Appellant as the shooter during
         the preliminary hearing, and the Commonwealth withheld
         [the victims’] exculpatory exoneration [of] Appellant by not
         providing discovery to Appellant’s attorney who by chance
         discovered [the victims’] prior statement[s] contained in
         Detective Orlando[ Ortiz’s] affidavit which was inadvertently
         made part of Appellant’s [PSI] report?

(Appellant’s Brief at 5).

      In his first issue, Appellant argues the Commonwealth failed to verify

whether the statement in the affidavits of probable cause stating the victims

had identified Appellant’s brother as the shooter on the photo arrays was

actually due to a typographical error. Appellant also claims the surveillance

video footage is exculpatory. Appellant submits he established a colorable

claim of innocence.    Appellant asserts the Commonwealth’s loss of contact

with witnesses does not show it would suffer prejudice if the court permitted

Appellant to withdraw his pleas, because the surveillance video depicts the

shooting.   Appellant concludes this Court should vacate the judgments of




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sentence and remand to permit Appellant to withdraw his guilty pleas.3 We

disagree.

       Review of the denial of a pre-sentence motion to withdraw a guilty plea

implicates the following:

          [W]e recognize that 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 591(A).
          The Supreme Court of Pennsylvania recently clarified the
          standard of review for considering a trial court’s decision
          regarding a defendant’s pre-sentence motion to withdraw a
          guilty plea:

              Trial courts have discretion in determining whether a
              withdrawal request will be granted; such discretion is
              to be administered liberally in favor of the accused;
              and any demonstration by a defendant of a fair-and-
              just reason will suffice to support a grant, unless
              withdrawal would work substantial prejudice to the
              Commonwealth.

          Commonwealth v. Carrasquillo, 631 Pa. 692, [704,] 115
          A.3d 1284, 1285, 1291-92 (2015) (holding there is no per
          se rule regarding pre-sentence request to withdraw a plea,
          and bare assertion of innocence is not a sufficient reason to
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3 To the extent Appellant raises on appeal any issues related to his earlier
2014 motion to withdraw his guilty plea at docket No. 769-2013, those claims
are waived for failure to preserve them in his Rule 1925(b) statement. See
Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2000)
(stating general rule that issues not raised in Rule 1925(b) concise statement
will be deemed waived on appeal); Commonwealth v. Hill, 609 Pa. 410,
427, 16 A.3d 484, 494 (2011) (stating: “Rule 1925(b) waivers may be raised
by the appellate court sua sponte”); Commonwealth v. Reeves, 907 A.2d
1, 2 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007)
(explaining that Rule 1925(b) statement must be “specific enough for the trial
court to identify and address the issue [an appellant] wishe[s] to raise on
appeal”).

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        require a court to grant such request). We will disturb a
        trial court’s decision on a request to withdraw a guilty plea
        only if we conclude that the trial court abused its discretion.
        Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa.Super.
        2013)[, appeal denied, 624 Pa. 687, 87 A.3d 318 (2014)].

Commonwealth v. Davis, 191 A.3d 883, 888-89 (Pa.Super. 2018), appeal

denied, ___ Pa. ___, 200 A.3d 2 (2019).

        [A] defendant’s innocence claim must be at least plausible
        to demonstrate, in and of itself, a fair and just reason for
        presentence withdrawal of a 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.

Carrasquillo, supra at 705-06, 115 A.3d at 1292 (internal citation omitted).

(indicating court should consider plausibility and sincerity of defendant’s

assertion of innocence, as well as circumstances surrounding pre-sentence

motion to withdraw plea, including motivation and timing of request; court

properly denied withdrawal motion where evidentiary record was closed,

defendant did not make request to reopen record to support motion to

withdraw his guilty plea, and his assertion of innocence was outlandish).

“[B]oth the timing and the nature of the innocence claim, along with the

relationship of that claim to the strength of the government’s evidence, are

relevant.” Commonwealth v. Islas, 156 A.3d 1185, 1190 (Pa.Super. 2017)

(noting defendant’s prior representation of innocence to police lent credence

to his pre-sentence assertion of innocence). See also Commonwealth v.

Norton, ___ Pa. ___, ___, 201 A.3d 112, 122 (2019) (stating: “The trial

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court…properly factored into its exercise of discretion [a]ppellant’s knowledge

of his available defenses when he pleaded and then inexplicably waited four

months to file his motion to withdraw his plea”).

      A defendant’s failure to establish a plausible claim of innocence renders

unnecessary a consideration of whether pre-sentence withdrawal of the guilty

plea would substantially prejudice the Commonwealth. Carrasqullio, supra

at 706 n.9, 115 A.3d at 1293 n.9 (declining to address prejudice to

Commonwealth, because defendant failed to assert plausible claim of

innocence); Commonwealth v. Hvizda, 632 Pa. 3, 9, 116 A.3d 1103, 1107

(2015) (holding pre-sentence request to withdraw plea failed on sole basis

that defendant made only bare assertion of innocence).

      Additionally, an appellant bears the burden to ensure the certified record

on appeal is complete and contains all the necessary materials for the

reviewing court to perform its duty.    Commonwealth v. Bongiorno, 905

A.2d 998, 1000 (Pa.Super. 2006) (en banc), appeal denied, 591 Pa. 688, 917

A.2d 844 (2007). Where a claim is dependent upon materials not provided in

the certified record, the claim is waived. Commonwealth v. Muntz, 630

A.2d 51, 55 (Pa.Super. 1993). Specifically, an appellant’s claim is waived

where the appellant fails to include exhibits in the certified record necessary

for appellate review.    Commonwealth v. Proetto, 771 A.2d 823, 834

(Pa.Super. 2001), aff’d, 575 Pa. 511, 837 A.2d 1163 (2003).

      Instantly, Appellant filed his pre-sentence motions to withdraw his guilty


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pleas nearly four and one-half years after he entered the pleas. Appellant’s

claim of innocence was grounded in: (1) the affidavits of probable cause

stating the victims had identified Appellant’s brother as the shooter in the

photo arrays, and (2) the surveillance footage purportedly showing Appellant

was not the shooter.

      Nevertheless, Appellant failed to establish a plausible claim of

innocence. First, at the outset of the preliminary hearing, the Commonwealth

indicated the victims had viewed photo arrays during the police investigation.

Appellant did not object or seek clarification of the prosecutor’s remarks as to

whether the victims had identified Appellant in the photo arrays as a bystander

or the shooter. Further, Appellant did not object to the victims’ identification

testimony or question the victims about their photo array identifications. Also,

Appellant made no argument regarding the alleged discrepancy in the

affidavits of probable cause.     Even though Appellant was aware of the

surveillance video, he similarly did not introduce the video, or play it and ask

the victims whether they recognized either individual in the video as Appellant.

Furthermore, defense counsel conceded there was evidence showing

Appellant was the shooter.

      Second, during the hearing on Appellant’s motion to withdraw his pleas,

he did not seek to reopen the evidentiary record. See Carrasquillo, supra.

Appellant failed to attempt to introduce any sworn statement or testimony

from Officer Ortiz to: (1) authenticate the photo arrays and describe his


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observations of the victims completing the photo arrays; and (2) confirm or

deny whether the affidavits of probable cause contained a typographical error.

Appellant also did not argue that any other witnesses could identify someone

other than Appellant as the shooter or present potential witnesses’ statements

to that effect. Additionally, Appellant did not request to mark as exhibits and

introduce the photo arrays and the surveillance video, so they are not part of

the certified record. See Bongiorno, supra; Pa.R.A.P. 1921. Furthermore,

the court stated it had viewed the video, disagreed with Appellant’s position

regarding what the video depicted in terms of the relative heights of the

individuals on the video, and concluded Appellant made no plausible assertion

of innocence.

      Third, the timing of Appellant’s pre-sentence motions to withdraw his

pleas nearly four and one-half years after he entered his guilty pleas, coupled

with Appellant’s failure to represent that he had maintained his innocence prior

to filing the motions, weigh against a determination that his innocence claim

is colorable.   See Norton, supra; Carrasquillo, supra; Islas, supra.

Finally, to the extent Appellant asserts the Commonwealth bore a burden to

show Appellant had no plausible innocence claim, that argument fails. Rather,

Appellant bore the burden to demonstrate a colorable assertion of innocence.

See Carrasquillo, supra.      Based upon the foregoing, Appellant failed to

establish a plausible assertion of innocence, and the court properly exercised

its discretion to deny Appellant’s pre-sentence motions to withdraw his guilty


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pleas. See id.

        In his second issue, Appellant argues the Commonwealth committed

Brady4 violations when it withheld exculpatory evidence regarding the photo

arrays at the preliminary hearing and withheld discovery years after Appellant

entered his guilty pleas.       Appellant asserts the Commonwealth elicited the

victims’ preliminary hearing testimony that Appellant was the shooter even

though it knew the testimony contradicted the affidavits of probable cause.

Appellant submits the Commonwealth prevented him from impeaching the

victims’ testimony by concealing that the victims’ allegedly had identified the

shooter as Appellant’s brother on the photo arrays.        Appellant posits the

Commonwealth’s intentional misconduct prohibits it from retrying Appellant,

pursuant to the Double Jeopardy Clause of the Pennsylvania Constitution.

Appellant concludes this Court should vacate the judgments of sentence. We

disagree.

        As a prefatory matter, “[g]enerally, a plea of guilty amounts to a waiver

of all defects and 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).

        Here, Appellant entered guilty pleas at both docket numbers. So, his

second issue regarding prosecutorial misconduct is waived for purposes of



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4   Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d. 215 (1963).

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appeal. See id. Furthermore, Appellant failed to include in his Rule 1925(b)

statement any mention of double jeopardy and Brady.             Thus, even if

Appellant’s prosecutorial misconduct claim was properly before us, his

arguments regarding double jeopardy and Brady would be waived.            See

Castillo, supra. Accordingly, Appellant’s issues merit no relief, and we affirm

the judgments of sentence.

      Judgments of sentence affirmed.

      Judge Lazarus joins this memorandum.

      Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/20




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