J. A12034/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
ALBERT DiPRIMEO,                          :         No. 2565 EDA 2016
                                          :
                         Appellant        :


           Appeal from the Judgment of Sentence, February 29, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0013858-2014


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBER 05, 2018

        Albert DiPrimeo appeals from the February 29, 2016 aggregate

judgment of sentence of 10 to 20 years’ imprisonment imposed after he pled

guilty to criminal attempt – rape, unlawful possession of a firearm, and

possessing instruments of crime (“PIC”).1 After careful review, we affirm.

        The trial court summarized the relevant facts and procedural history of

this case as follows:

              On July 20, 2015, [appellant] entered a negotiated
              guilty plea to attempted rape, prohibited possession
              of a firearm, and [PIC]. In exchange for [appellant’s]
              plea, the Commonwealth agreed to a nolle prosequi
              of the remaining charges and to recommend an
              aggregate sentence of ten to twenty years’
              incarceration. The following were the facts recited by
              the attorney for the Commonwealth during
              [appellant’s] guilty plea:

1   18 Pa.C.S.A. §§ 901(a), 3121(a)(2), 6105(a)(1), and 907(a), respectively.
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               If the Commonwealth had proceeded to
               trial, the Commonwealth would’ve shown
               that on Monday, June 30, 2014, around
               the 7900 block of Marsden Street,
               [appellant] attempted to engage in sexual
               intercourse by forcible compulsion; that
               force being holding a firearm to the
               complaining witness . . . by confining her
               to his home and stating, “C[***], you are
               not leaving here until I get into your
               p[****],” and throwing her onto his
               couch,     removing   her     pants   and
               underwear—all of this at the point of
               gun—and stating, “You're going to die,”
               while pressing his exposed penis at her
               vagina.

               [Appellant] is ineligible to possess a
               firearm by statute as a result of a prior
               conviction for possession with the intent
               to deliver, as well as he carries no license
               to carry that firearm.

               Those are the allegations we would prove
               to meet these three charges. [The victim]
               was able to escape, Your Honor, so the
               rape was not completed.

          [Notes of testimony,] 7/20/15 [at] 6-7.

          Following a detailed written and verbal colloquy, this
          court accepted [appellant’s] plea and found him guilty
          of the above charges. The court immediately imposed
          the negotiated sentences on the firearm and PIC
          convictions but deferred sentencing on the rape
          conviction until February 29, 2016, pending an
          evaluation by the Sexual Offenders Assessment
          Board. [Appellant] filed a motion for reconsideration
          of the negotiated sentence on March 9, 2016, which
          the court denied on March 30, 2016.

          On May 4, 2016, [appellant] filed a counseled petition
          for post-conviction relief, [pursuant to the Post
          Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-


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            9546,] requesting reinstatement of his direct appeal
            rights nunc pro tunc.       The court granted the
            requested relief on August 8, 2016, and this appeal
            followed [on August 9, 2016.]

Trial court supplemental opinion, 8/3/17 at 1-2 (footnotes omitted).

      On August 10, 2016, the trial court ordered appellant to file a concise

statement    of   errors   complained    of   on   appeal,   in   accordance   with

Pa.R.A.P. 1925(b).     Appellant filed a timely Rule 1925(b) statement on

August 29, 2016.     That same day, appellant filed a motion requesting an

extension of time to file a supplemental Rule 1925(b) statement upon receipt

of the notes of testimony. The trial court granted appellant’s motion. On

February 7, 2017, the trial court filed its Rule 1925(a) opinion concluding that

appellant waived his claim that his guilty plea was not knowing, voluntary,

and intelligent by failing to challenge it at the time of the colloquy or in a post-

sentence motion. (See trial court opinion, 2/7/17 at 2-3.) On February 15,

2017, appellant filed a supplemental Rule 1925(b) statement. Thereafter, on

August 3, 2017, the trial court filed a supplemental Rule 1925(a) opinion

concluding, inter alia, that “[appellant’s] supplemental allegations of error

are nothing more than attempts to refashion his waived claim that his plea

was not knowingly, voluntarily, and intelligently tendered.”           (Trial court

supplemental opinion, 8/3/17 at 3 (internal quotation marks omitted).)

      Appellant raises the following issue for our review:

            Should not this [c]ourt vacate appellant’s judgment of
            sentence, notwithstanding appellant’s failure to file a
            petition to withdraw his guilty plea, where ineffective


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            assistance of counsel[2] prevented appellant from
            filing such a petition and where appellant’s guilty plea
            was unknowingly, involuntarily, and unintelligently
            entered?

Appellant’s brief at 3.

      Appellant’s argument is two-fold. We begin by addressing appellant’s

claim that his guilty plea was not knowing, voluntary, and intelligent.

Specifically, appellant avers that “[t]he record does not affirmatively

demonstrate that [he] understood the nature of the charges or the factual

basis for his plea” or that he was aware “of the terms of his sentence or the

consequences of his plea.” (Id. at 22, 26 (emphasis omitted).)

      It is well settled that when a defendant enters a guilty plea, he waives

the right to challenge on appeal “all non-jurisdictional defects except the

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

Lincoln, 72 A.3d 606, 609 (Pa.Super. 2013), appeal denied, 87 A.3d 319

(Pa. 2014). When a defendant seeks to withdraw a plea after sentencing, he

must demonstrate “prejudice on the order of manifest injustice before

withdrawal is justified.” Commonwealth v. Yeomans, 24 A.3d 1044, 1046

(Pa.Super. 2011) (citation omitted).       “A plea rises to the level of manifest

injustice   when   it     was   entered    into   involuntarily,   unknowingly,   or

unintelligently.” Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super.

1999), appeal denied, 764 A.2d 1068 (Pa. 2000). Moreover, “[a] defendant


2 Appellant was represented during his guilty plea by Mythri Jayaraman, Esq.
(hereinafter, “plea counsel”).


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wishing to challenge the voluntariness of a guilty plea on direct appeal must

either object during the plea colloquy or file a motion to withdraw the plea

within ten days of sentencing. Failure to employ either measure results in

waiver.” Lincoln, 72 A.3d at 609-610 (internal citations omitted).

      Instantly, we agree with the trial court that appellant is not entitled to

review of his claim because he failed to properly preserve it by either objecting

during the plea colloquy or filing a post-sentence motion seeking to withdraw

the plea on the basis it was involuntary, unknowing, or intelligently entered.

See Pa.R.Crim.P. 720(B)(1)(a)(i). On the contrary, appellant’s March 9, 2016

post-sentence motion merely requested that the trial court reconsider or

modify its sentence. (See “Post-Sentencting [sic] Motion,” 3/9/16 at ¶ 2.)

Accordingly, we find that appellant’s challenge to the validity of his negotiated

guilty plea is waived.

      We now turn to appellant’s contention that plea counsel’s purported

ineffectiveness “prevented [him] from filing a timely petition to withdraw his

guilty plea,” and that this ineffectiveness constituted a “manifest injustice”

that justified a withdrawal of said plea. (Appellant’s brief at 31-35.) For the

reasons that follow, we find that appellant is not entitled to review of this claim

on direct appeal.

      Generally,    absent   limited   circumstances,    “claims   of   ineffective

assistance of counsel are to be deferred to PCRA review[.]” Commonwealth

v. Reid, 117 A.3d 777, 787 (Pa.Super. 2015) (citation omitted).                 In



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Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our supreme court set

forth two exceptions to this general rule: (1) where the trial court determines

that the ineffectiveness claim is “both meritorious and apparent from the

record so that immediate consideration and relief is warranted[;]” or

(2) where the trial court finds “good cause” for review and the defendant

makes a “knowing and express waiver of his entitlement to seek PCRA review

from his conviction and sentence, including an express recognition that the

waiver subjects further collateral review to the time and serial petition

restrictions of the PCRA.” Id. at 577, 578.

      Neither of these exceptions are applicable in the instant matter. First,

the trial court did not find that appellant’s ineffectiveness claim was either

meritorious or readily apparent from the record.        Moreover, there is no

indication in the record that appellant made a knowing and intelligent waiver

of his entitlement to seek PCRA review. Rather, the trial court concluded,

inter alia, that appellant’s ineffectiveness claim was premature and should

be addressed on collateral review.     (See trial court supplemental opinion,

8/3/17 at 6.) Accordingly, all allegations of ineffectiveness in connection with

the entry of appellant’s guilty plea must be deferred until collateral review.

      Based on the foregoing, we find that appellant’s claims are waived or

are not cognizable on direct appeal and affirm the trial court’s February 29,

2016 judgment of sentence.




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     Judgment of sentence affirmed.



     Ott, J. joins this Memorandum.

     Bowes, J. files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 11/5/18




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