J-S76012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KEITH NORWOOD

                            Appellant                   No. 319 EDA 2016


            Appeal from the Judgment of Sentence October 9, 2012
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0016048-2010


BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                           FILED January 12, 2017

        Appellant Keith Norwood appeals nunc pro tunc from the October 9,

2012 judgment of sentence entered in the Court of Common Pleas of

Philadelphia County (“trial court”) following his guilty plea to third degree

murder, conspiracy to commit third degree murder, and possessing

instruments of crime.1       Appellant challenges the voluntariness of his plea.

Upon review, we affirm.

        On October 9, 2012, Appellant entered a negotiated guilty plea to

murder of the third degree, conspiracy, and possessing an instrument of

crime.     Appellant was sentenced to an aggregate term of 25-50 years’

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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(c), 903, & 907 respectively.
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incarceration for third degree murder and conspiracy to commit third degree

murder. On October 18, 2012, the trial court denied Appellant’s motion for

reconsideration of sentence.2        Appellant did not file a direct appeal.

        On October 9, 2013, Appellant filed a timely pro se PCRA petition. The

trial court appointed Appellant PCRA counsel who filed an amended PCRA

petition on October 21, 2014. After numerous continuances, the trial court

reinstated Appellant’s direct appellate rights nunc pro tunc on January 15,

2016.     On January 20, 2016, Appellant filed a notice of appeal nunc pro

tunc.    On February 26, 2016, the trial court directed Appellant to comply

with Pa.R.A.P. 1925(b).        Appellant filed a 1925(b) statement on March 1,

2016, and the trial court issued an opinion on June 24, 2016.

        Appellant raises a sole issue on appeal. “Was [A]pellant’s guilty plea

not knowing, intelligent[,] and voluntary because [A]ppellant was not

informed of the mens rea elements of the offenses of third degree murder

and conspiracy to commit third degree murder?” Appellant’s Brief at 2.

        It is well settled “that by entering a guilty plea, the defendant waives

his right to challenge on direct appeal all nonjursidictional defects except the

legality of the sentence and the validity of the plea.”         Commonwealth v.

Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013) (citation omitted). “There is

no absolute right to withdraw a guilty plea.” Commonwealth v. Broaden,

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2
  Appellant’s motion was filed pro se; however, it was adopted by trial
counsel.



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980 A.2d 124, 128 (Pa. Super. 2009) (citations omitted).                 In order to

withdraw a guilty plea following the imposition of sentence, “a defendant

must demonstrate that manifest injustice would result.”3                Id. at 129.

“Manifest injustice may be established if the plea was not tendered

knowingly,     intelligently,    and    voluntarily.”     Id.   (citations   omitted).

Furthermore, “the court must examine the totality of circumstances

surrounding the plea.” Id. (citations omitted).

       During the guilty plea hearing, the Commonwealth provided the

following description of the crimes charged.

              Murder of the third degree requires the Commonwealth to
              prove beyond a reasonable doubt that you acted with
              malice and caused the death of someone. For third-degree
              murder, malice is defined as acting with complete
              disregard for the value of human life. This is different
              from first-degree murder where you have to act with a
              specific intent to kill.    For third-degree murder, the
              Commonwealth only has to prove you acted with disregard
              to the value of human life.

N.T. Guilty Plea, 10/9/2012, at 18.            Malice is defined as “a wickedness of

disposition, hardness of heart, cruelty, recklessness of consequences, and a

mind regardless of social duty, although a person may not be intended to be

injured.”    Commonwealth v. McHale, 858 A.2d 1209, 1213 (Pa. Super.
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3
 While Appellant did not file a post-sentence motion to withdraw guilty plea
nunc pro tunc, this Court will still address this issue. In his PCRA petition
Appellant requested the reinstatement of his post-sentence motion rights as
well as direct appellate rights. The trial court’s order reinstating his direct
appellate rights fails to address the right to file post-sentence motions nunc
pro tunc. Therefore, we will not find this issue waived.



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2004). Furthermore, “malice is the element that raises criminal homicide to

culpable murder.” Id. The Commonwealth clearly stated “malice is defined

as acting with complete disregard for the value of human life.” Moreover,

Appellant’s brief fails to develop the argument or cite to any authority that

the definition read to Appellant is not the functional equivalent of

“wickedness of disposition, hardness of heart, cruelty, recklessness of

consequences, and a mind regardless of social duty.” The Commonwealth’s

description adequately addressed the element of malice required for third

degree murder; therefore, Appellant’s claim that his guilty plea to third

degree murder was not knowing, intelligent, or voluntary fails.

     Appellant’s next claim is that his plea was not knowing, intelligent, or

voluntary because he was misinformed of the elements of conspiracy to

commit third degree murder.         During the guilty plea hearing, the

Commonwealth defined the elements of conspiracy to commit third degree

murder.

           You are also pleading guilty to a charge of conspiracy to
           commit third-degree murder, and that, in this case, that
           means the Commonwealth has to prove beyond a
           reasonable doubt that you made some kind of an
           agreement with another person and took at least one step
           towards completing this agreement. In this case, the
           agreement to commit third-degree murder would mean
           that you, in essence, agreed with someone to commit at
           least serious bodily injury upon another person. In this
           case, that serious bodily injury resulted in someone’s
           death.




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N.T. Guilty Plea, 10/9/2012, at 19. Conspiracy requires that the defendant

have the intent of promoting or facilitating a crime and engaging in conduct

which constitutes such crime. 18 Pa.C.S.A. § 903(a). In Commonwealth

v. Fisher, 80 A.3d 1186 (Pa. 2013), our Supreme Court held that conspiracy

to commit third degree was a cognizable offense and “if a defendant acts

with his co-conspirators in brutally attacking the victim . . . but does not

care whether the victim dies or not, he conspires to commit third degree

murder.”   Fisher, 80 A.3d at 1195.     As this factual scenario is practically

identical to the description given to Appellant during his guilty plea colloquy,

Appellant’s claim fails.   Furthermore, Appellant’s brief fails to develop the

argument or cite to any authority that the definition read to Appellant is

inadequate.

      Judgment of sentence affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2017




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