J-S12027-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KHALIL PUGH                                :
                                               :
                       Appellant               :   No. 2807 EDA 2019

          Appeal from the Judgment of Sentence Entered June 25, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-00007367-2017


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

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

        Khalil Pugh (Appellant) appeals from the judgment of sentence entered

in the Philadelphia County Court of Common Pleas following his negotiated

guilty plea to, inter alia, murder in the third degree.1 Appellant’s counsel,

Stephen O’Hanlon, Esq. (Appeal Counsel), has filed a petition to withdraw from

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

grant Appeal Counsel’s petition to withdraw, and affirm Appellant’s judgment

of sentence.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 2502(c).
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        The trial court summarized the relevant facts as follows. On August 7,

2017, Appellant entered a house at 1866 East Clementine Street in

Philadelphia, where he poured lighter fluid on the first floor and ignited it. The

resulting fire caused the death of the victim, who was in the second floor

bedroom at the time. The fire marshal determined the fire was a result of

arson and incendiary by nature. A forensic pathologist determined the victim’s

death was caused by inhalation of products of combustion.          Trial Ct. Op.,

11/19/19, at 3, citing N.T. Guilty Plea H’rg, 6/25/18, at 29-31.

        On August 14, 2017, Appellant gave a video confession to Philadelphia

police detectives, where he stated that he went into the home, poured the

lighter fluid on a couch, and lit it on fire. Appellant’s girlfriend also gave a

written statement to police that she observed Appellant take a bottle of lighter

fluid and walk outside saying “that he was going to light the house on fire.”

Trial Ct. Op. at 3, citing N.T., 6/25/18, at 32-34.

        The trial court summarized the procedural history as follows. On June

25, 2018, the date set for trial, Appellant entered a negotiated guilty plea

murder of the third degree and possessing an instrument of crime2 (PIC). In

exchange for this plea, the Commonwealth agreed to withdraw charges of

first- and second-degree murder, both of which carried a mandatory life




____________________________________________


2   18 Pa.C.S. § 907(a).

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sentence without the possibility of parole.      Trial Ct. Op. at 7, citing N.T.,

6/25/18, at 53-54. On the same day, the trial court

        imposed concurrent sentences of 15 to 30 years[’] incarceration
        for the third degree murder charge and 1 to 2 years[’]
        incarceration for the PIC charge[.]

             Thereafter, [Appellant] filed a pro se motion to withdraw his
        guilty plea, [docketed on July 11, 2018,] in which he claimed that
        his plea counsel, James Lammendola, Esquire [(Plea Counsel)],
        was ineffective. [Plea Counsel] subsequently filed a motion to
        withdraw as counsel, which the [c]ourt granted on July 26, 2018.

             Thereafter, Lee Mandell, Esquire was appointed as counsel.
        On June 13, 2019, due to irreconcilable differences between
        [Appellant] and Mr. Mandell, the [c]ourt relieved Mr. Mandell from
        representing [Appellant]. On June 14, 2019, while [Appellant’s
        pro se] motion to withdraw his guilty plea was still pending before
        the Court, [Appellant] filed a pro se petition under the Post
        Conviction Relief Act[3] (“PCRA”), again claiming that [Plea
        Counsel] was ineffective.

              On June 19, 2019, [Appeal Counsel] was appointed to
        represent [Appellant]. At a hearing held on September 27, 2019,
        [Appeal Counsel] withdrew the PCRA petition, and elected to
        proceed on the pending motion to withdraw the guilty plea.
        Although the motion had been filed with the [c]ourt more than 10
        days after sentencing, and was therefore untimely, see
        Pa.R.Crim.P. 720(A)(1), the [c]ourt granted counsel’s request to
        accept the motion as timely filed nunc pro tunc, since [Appellant]
        had attempted to withdraw the plea within the 10 day period by
        writing to the District Attorney’s Office.[4 N.T., 9/27/19, at 11.]
____________________________________________


3   42 Pa.C.S. §§ 9541-9546.

4 As Appellant was sentenced on June 25, 2018, he had 10 days, or until July
5th, to file a motion to withdraw his plea. See Pa.R.Crim.P. 720(A)(1),
(B)(1)(a)(i) (written post-sentence motion to withdraw plea shall be filed no
later than 10 days after imposition of sentence). This Court noted, however,
that Appellant’s envelope to the trial court bore a postal service cancellation
date of July 6th. Thus, this Court issued a rule to show cause on November



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             At the hearing, [Appellant] contended that his plea was
       involuntary since [Plea Counsel] was not prepared for trial and
       had not conducted an adequate investigation. [N.T. 9/27/19, at
       10-11.] At the conclusion of the hearing, the [c]ourt denied
       [Appellant]’s motion to withdraw his guilty plea.

              [Appeal Counsel] filed a Notice of Appeal on [Appellant]’s
       behalf on September 27, 2019. On October 5, 2019, [Appeal
       Counsel] filed a statement of intent to file a brief pursuant to
       Anders . . . and [Santiago], on the ground that an appeal would
       be wholly frivolous[. See] Pa.R.A.P. 1925(c)(4) (authorizing
       counsel to file a statement of intent to file an Anders/Santiago
       brief if there are no arguably meritorious issues for review).

Trial Ct. Op. at 1-2 (paragraph break added). Appellant has not filed a pro se

brief or retained new counsel for this appeal.

       As stated above, Appeal Counsel has filed with this Court an Anders

brief and petition to withdraw from representation. This Court cannot address

the merits of issues raised on appeal without first reviewing a request to

withdraw. Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super.

2013) (en banc). To withdraw from representation on appeal,

       [c]ounsel must: 1) petition the court for leave to withdraw stating
       that, after making a conscientious examination of the record,
____________________________________________


25, 2019, why the appeal should not be quashed pursuant to
Commonwealth v. Capaldi, 112 A.3d 1242 (Pa. Super. 2015) (trial court
must expressly grant permission to file post-sentence motion nunc pro tunc
within 30 days of sentencing). Order, 11/25/19. Appeal Counsel filed a
response, stating the pro se motion should be deemed timely filed under the
prisoner mailbox rule. See Commonwealth v. Jones, 700 A.2d 423, 426
(Pa. 1997) (under prisoner mailbox rule, pro se filing by incarcerated
defendant will be deemed filed on date he deposited it with prison authorities
or placed it in prison mailbox). On December 4, 2019, this Court discharged
our rule to show cause.


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      counsel has determined that the appeal would be frivolous; 2)
      furnish a copy of the brief to the defendant; and 3) advise the
      defendant that he or she has the right to retain private counsel or
      raise additional arguments that the defendant deems worthy of
      the court’s attention.

Id.

      Here, Appeal Counsel’s Anders brief states he made a conscientious

review of the record and concluded that there are no non-frivolous issues.

Anders Brief at 7, 11. Appeal Counsel further states he notified Appellant

that he was seeking to withdraw from representing him, furnished Appellant

with copies of his petition to withdraw, Anders brief and Pa.R.A.P. 1925(c)(4)

statement, and informed Appellant of his right to retain new counsel or

proceed pro se to raise any issues he believes this Court should consider.

Thus, Appeal Counsel has satisfied the procedural requirements of Anders.

See Cartrette, 83 A.3d at 1032.

      Next, we consider whether Appeal Counsel’s Anders brief meets the

substantive requirements of Santiago:

      [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.

See Cartrette, 83 A.3d at 1032.




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      Instantly, Appeal Counsel provides the procedural history and facts of

the case.     Additionally, he states Appellant wishes to challenge the

voluntariness of his guilty plea, but Appeal Counsel concludes that the issue

is wholly frivolous. Anders Brief at 8-9. In support, Appeal Counsel explains

the trial court conducted a thorough colloquy explaining the maximum

sentence; and Appellant admitted to the underlying facts, signed a written

colloquy form, and stated his plea was not forced. Counsel concludes there is

no manifest injustice associated with the trial court’s ruling not to allow

Appellant to withdraw his guilty plea. Id. at 8, 9-11. Thus, Appeal Counsel

has complied with the substantive requirements of Santiago. See Cartrette,

83 A.3d at 1032.

      “Once counsel has satisfied the above requirements, it is then this

Court’s duty to conduct its own review of the trial court’s proceedings and

render an independent judgment as to whether the appeal is, in fact, wholly

frivolous.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super.

2008) (citation omitted).

      Here, Appellant claims his plea was unknowing and involuntary. Anders

Brief at 8. Appeal Counsel explains that Appellant claims his confession was

coerced by a corrupt Philadelphia Police detective, James Pitt, and his plea

was involuntary “because [P]lea [C]ounsel had not properly subpoenaed a

known witness and City of Philadelphia files on Detective Pitts.” Id. Appellant




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further contends he is innocent of, and had no motive to commit, the

underlying crimes. Id.

     This Court has stated:

     Our law is clear that, to be valid, a guilty plea must be knowingly,
     voluntarily and intelligently entered. There is no absolute right to
     withdraw a guilty plea, and the decision as to whether to allow a
     defendant to do so is a matter within the sound discretion of the
     trial court. To withdraw a plea after sentencing, a defendant must
     make a showing of prejudice amounting to “manifest injustice.”
     “A plea rises to the level of manifest injustice when it was entered
     into involuntarily, unknowingly, or unintelligently.” . . .

Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003) (citations

omitted).

            In order for a guilty plea to be constitutionally valid, the
            guilty plea colloquy must affirmatively show that the
            defendant understood what the plea connoted and its
            consequences. This determination is to be made by
            examining the totality of the circumstances surrounding
            the entry of the plea. [A] plea of guilty will not be
            deemed invalid if the circumstances surrounding the
            entry of the plea disclose that the defendant had a full
            understanding of the nature and consequences of his
            plea and that he knowingly and voluntarily decided to
            enter the plea.

     “Our law presumes that a defendant who enters a guilty plea was
     aware of what he was doing. He bears the burden of proving
     otherwise.” “[W]here the record clearly demonstrates that a
     guilty plea colloquy was conducted, during which it became
     evident that the defendant understood the nature of the charges
     against him, the voluntariness of the plea is established.” Thus,

            [a] court accepting a defendant’s guilty plea is required
            to conduct an on-the-record inquiry during the plea
            colloquy. The colloquy must inquire into the following
            areas:




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            (1) Does the defendant understand the nature of the
            charges to which he or she is pleading guilty or nolo
            contendere?

            (2) Is there a factual basis for the plea?

            (3) Does the defendant understand that he or she has
            the right to trial by jury?

            (4) Does the defendant understand that he or she is
            presumed innocent until found guilty?

            (5) Is the defendant aware of the permissible range of
            sentences and/or fines for the offenses charged?

            (6) Is the defendant aware that the judge is not bound
            by the terms of any plea agreement tendered unless the
            judge accepts such agreement?

Commonwealth v. Rush, 909 A.2d 805, 808-09 (Pa. Super. 2006) (citations

omitted).

     Addressing Appellant’s claims regarding Detective Pitts, the trial court

reasoned:

     [T]he record refutes [Appellant]’s claim that he was forced into
     entering his guilty plea. [N.T., 9/27/19 at 52.] At the hearing on
     the motion to withdraw [Appellant]’s guilty plea, [Appellant]
     testified that Detective Pitts . . . threatened to arrest [Appellant]’s
     girlfriend and take away their children unless [Appellant]
     confessed to the crime. [Id. at 13. Appellant] also claimed that
     when his girlfriend was brought into the interrogation room, she
     told him that Detective Pitts had made the same threat to her
     unless she gave a statement against [Appellant. Id. at 14, 21.]
     Further, [Appellant] testified that a witness named Derrick
     Alexander would testify that he was in the second floor of the
     home during the fire and that he believed another individual set
     fire to the home because he and this individual had been in
     multiple arguments. [Id. at 35-36, 43.] According to [Appellant],
     on the day of his guilty plea, [Plea Counsel] told him that he could
     not win the case and that he was not prepared to mount a defense
     at trial because he did not have any information on Detective Pitts

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      and was not able to contact any witnesses. [Id. at 15-16.
      Appellant] claimed that he did not want [Plea Counsel] to continue
      to represent him. [Id. at 16.] According to [Appellant], he felt
      forced to enter into the guilty plea so that he could then file a
      PCRA petition, claim [Plea Counsel] was ineffective, withdraw his
      guilty plea, and then get another attorney appointed to represent
      him. [Id. at 16-18.]

Trial Ct. Op. at 5. The trial court, however, found Appellant’s claims meritless.

The court summarized that when it

      first attempted to conduct a guilty plea colloquy[, Appellant]
      stated that he was going to reject the offer since he did not have
      adequate time to discuss it with his family, but asked the [c]ourt
      for some additional time to speak with [Plea C]ounsel. [N.T.,
      6/25/18, at 15-18.] After that, he once again expressed a desire
      to plead guilty, but again changed his mind during the colloquy.
      [Id. at 36-37.] At that time, the [c]ourt advised [Appellant] that
      the trial would go forward and argument was heard on pretrial
      motions. [Id. at 37-49.] However, after returning from a one
      hour lunch break, [Appellant] informed the [c]ourt that he did in
      fact wish to plead guilty. [Id. at 49-50.] The [c]ourt did not
      pressure [Appellant] to [plead.]

Id. at 6.

      We further note the following exchange:

            THE COURT: . . . [T]he reason that we’re going through
      this discussion . . . which we call a colloquy, is so that I can be
      sure before I accept your plea that you’re doing so voluntarily.
      And if I don’t believe that it’s voluntarily tendered, I won’t accept
      it. So it’s very unlikely after having a colloquy like this that you
      would get anywhere with a higher court on that ground. Do you
      understand that, sir?

            [Appellant]: Yes, sir.

                                  *    *    *

           THE COURT: [J]ust so there’s no confusion, I know that an
      hour and a half ago you decided you didn’t want the deal, you
      have changed your mind now and want the deal. If you go

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     forward — and in a minute here I’m going to tell my crier to go
     ahead and arraign you. And once I do that and you say guilty,
     okay, at that point you would have pleaded guilty, you’re not
     going to have a trial, we’re going to go forward to sentencing, you
     won’t be able to come back at a later time and say, you know, I
     change my mind again, now I want to have my trial. If you feel
     like that, now is the time you have to tell me. If you tell me that
     now, I’ll allow you to go forward with motions and have your trial.

           Do you want to go forward and plead guilty at this time?

           [Appellant]: Yes, sir.

N.T., 6/25/18, at 22-23, 55-56.

     After reviewing the trial court’s opinion and the certified record, we

conclude Appellant has not established manifest injustice justifying the

withdrawal of his guilty plea. See Pollard, 832 A.2d at 522. Thus, the record

establishes that Appellant knowingly and voluntarily entered his guilty plea,

and we discern no non-frivolous issue that Appellant could raise on appeal.

See Wimbush, 951 A.2d at 382; Rush, 909 A.2d at 808-09.

     For the above-stated reasons, we grant Appeal Counsel’s petition to

withdraw, and affirm Appellant’s judgment of sentence.

     Petition to withdraw granted. Judgment of sentence affirmed.



     Judge Colins joins the memorandum.

     Judge Shogan concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2020




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