J-S30018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA

                             Appellee

                        v.

    FREDERICK D. COLLINS

                             Appellant               No. 1265 WDA 2017


              Appeal from the Judgment of Sentence April 26, 2017
               In the Court of Common Pleas of Allegheny County
               Criminal Division at Nos: CP-02-CR-0012275-2015,
              CP-02-CR-0013218-2015, CP-02-CR-0013234-2015,
              CP-02-CR-0013236-2018, CP-02-CR-0013238-2015,
                            CP-02-CR-0013685-2015

BEFORE: BENDER, P.J.E., STABILE, J. AND STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                             FILED JULY 16, 2018

        Appellant, Frederick D. Collins, appeals from his judgment of sentence

for a series of felonies. Appellant argues that the trial court erred in denying

his presentence motion to withdraw his nolo contendere plea and abused its

discretion in sentencing him to an aggregate of 25-50 years’ imprisonment.1

We affirm.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1 The trial court sentenced Appellant to the following consecutive terms of
imprisonment: at CP-02-CR-0012275-2015, 4-8 years for terroristic threats
(18 Pa.C.S.A. § 2706); at CP-02-CR-0013234-2015, 5-10 years for persons
not to possess firearms (18 Pa.C.S.A. § 6105); at CP-02-CR-0013236-2015,
5-10 years for persons not to possess firearms; at CP-02-CR-0013238-2015,
5-10 years for aggravated assault (18 Pa.C.S.A. § 2702); and at CP-02-CR-
0013685-2015, 6-12 years for intimidation of witnesses or victims (18
Pa.C.S.A. § 4952).
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      Appellant was charged with a series of offenses arising from events

between July and October of 2015, when he was 34½ years old. On October

25, 2016, Appellant pleaded nolo contendere to multiple charges at the above

caption numbers. The trial court identified the charges and informed Appellant

of the maximum sentence for each offense, and Appellant acknowledged that

he understood the charges.     N.T., 10/25/16, at 1-9.     The Commonwealth

summarized the relevant facts as follows:

      [H]ad we proceeded to trial [at CP-02-CR-0013234-2015], we
      would have called officers from the City of McKeesport Police
      Department, [and] they would have testified that on September
      6th of 2015 at about 4:22 p.m., they were notified by Shona
      Green that a male had pointed a gun at her. Shona’s neighbor,
      Michelle Simpson, had asked Shona to go over to Michelle’s house
      to feed her dog. When Shona Green went to the house, the door
      swung open and [Appellant] was standing there pointing a silver
      pistol at her and he said to her: What the fuck are you doing at
      my house? I will fucking shoot you. So Shona then ran away.

      Six minutes later . . . at [CP-02-CR-0013236-2015], West Mifflin
      police received a dispatch about the prior incident, and Michelle
      Simpson who stated that [Appellant] was on his way to Monview
      Heights to kill her and everyone else. The officers arrived on
      scene, observed a silver minivan exiting the front gate and they
      pursued the van, initiated a traffic stop, and the officer asked who
      the passenger was and he stated his name was Louis Ellis, [and]
      they later identified him as [Appellant]. They identified the driver
      as Daryl Waite who apparently was a jitney driver and Waite told
      them that [Appellant] had entered the vehicle with a firearm, he
      pulled the firearm and said take me to Monview. During the
      drive[,] [Appellant] stated he was going to kill her, and Waite said
      that . . . there was a firearm in the glove compartment which the
      officer retrieved. There are two firearms charges [for] which we
      would have provided the certificate of non-licensure. Then at the
      lab, the firearm was identified as a .25–caliber Raven Arms pistol
      912566, good operation, no barrel length in the report, but the
      officer would testify it was less than 16 inches. As to the persons
      not to possess, we would have introduced a certified conviction

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     for robbery of a motor vehicle and aggravated assault, November
     19th of 2001, at CC 1999-14932.

                                *      *     *

     In [CP-02-CR-0013218-2015], had this matter proceeded to trial,
     the Commonwealth would have called witnesses from McKeesport
     City Police Department, as well as the victim in this matter,
     Michelle Simpson. The testimony would have been heard that on
     or about July 16, 2015, in Allegheny County, that [Appellant]
     threatened the victim as well as her juvenile daughter, who was
     six years old at the time, that he would kill Michelle Simpson as
     well as physically assault her six-year-old daughter. [Appellant]
     also physically assaulted the victim Michelle Simpson by punching
     her in the back of the head.

     Moving on to . . . [CP-02-CR-0013685-2015], had this matter
     proceeded to trial, the Commonwealth would have called officers
     from the West Mifflin Borough Police Department, namely Officer
     Joseph Hoffman, Officer Robert Fedor and Officer Michael Pintigh
     . . . Further the Commonwealth would have called a witness who
     was the victim, Michelle Simpson, as well as Magisterial District
     Judge Richard Olasz. The testimony would have been heard that
     on or about October 1, 2015, in the County of Allegheny that a
     preliminary hearing was being held where [Appellant] was Mr.
     Collins and the victim was Michelle Simpson, during the course of
     that preliminary hearing, Mr. Collins became disorderly and was
     removed from the hearing. On the way out of the hearing, he
     threatened the victim Michelle Simpson and threatened to kill her,
     put his hand in the shape of a gun. He further threatened to kill
     Officer Joseph Hoffman and Officer Robert Fedor. Later, MDJ
     Olasz was leaving the hearing. As he walked by the police car
     where [Appellant] was being held, [Appellant] threatened Judge
     Olasz and said that he would kill him as well. At this time he was
     currently at preliminary hearing facing charges of felonies of a first
     degree for a prior assault on Michelle Simpson. While in the police
     car [Appellant] was handcuffed, however, he was able to remove
     his hands from a handcuff. During that time Officer Joseph
     Hoffman and Officer Robert Fedor were present. [Appellant]
     physically resisted their arrest resulting in them deploying their
     Tasers at him. Further, while [Appellant] was in the police car he
     did defecate and damage the police car with the feces.




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     Moving on to [CP-02-CR-0013238-2015,] had this matter
     proceeded to trial, the Commonwealth would have called
     witnesses from the City of McKeesport Police Department, as well
     as the victim in this matter, Michelle Simpson. Had this matter
     proceeded to trial, the testimony would have been heard that on
     or about September 5, 2015, that [Appellant] physically assaulted
     Michelle Simpson with a firearm, striking her in the face with it.
     Further, he threatened both her and her 7-year-old daughter who
     was asleep on the couch with her with the firearm, threatening to
     kill both of them.

                                *     *     *

     [H]ad [CP-02-CR-0013275-2015] proceeded to trial on . . . three
     . . . counts of terroristic threats, the Commonwealth would have
     called officers from the West Mifflin Borough Police Department,
     as well as the victim in this matter, Michelle Simpson, as well as
     Jason Steward. Here testimony would have been heard that on
     or about September 6, 2015, that [Appellant] had threatened the
     three victims, to kill all of them. Mr. Steward was currently in a
     relationship with Ms. Simpson, and Ms. Simpson’s daughter was
     present when [Appellant] threatened to kill all of them.

N.T., 10/25/16, at 9-15.

     The trial court accepted Appellant’s nolo contendere plea as knowing,

voluntary and intelligent, adding that Appellant could receive a maximum of

203 years’ imprisonment. Id. at 15.

     On April 26, 2017, Appellant appeared for sentencing. At the beginning

of the hearing, defense counsel, Carl Marcus, Esquire, informed the court that

both he and Appellant wished for Attorney Marcus to withdraw from

representation, and that Attorney Marcus had filed a motion to withdraw. The

following exchange ensued:

     The Court: Okay. First of all, there is no reason to withdraw until
     - - there is no petition to withdrawn until after sentencing and


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     when you put in your appearance you represent a client through
     the trial and through sentencing.

     Mr. Marcus: I understand.

     The Court:    So I’m asking you to represent him through
     sentencing. I will appoint someone else if you still wish to
     withdraw at the end of sentencing.

N.T., 4/26/17, at 3. Appellant then asked to withdraw his plea as follows:

     [Appellant]: Ms. McDaniels, I will not ---

     The Court: Address me as judge is a pretty good place to start.

     [Appellant]: Judge McDaniels, I did not enter a guilty plea or a
     nolo contendere plea of my own free will. He told me if I entered
     the plea in January, you would sentence me to two to four years.
     I came over here in January, my sentence was postponed until
     today. I do not want a guilty plea. I was coerced. I didn’t enter
     it on my own free will.

     The Court: Well, I’ve reviewed the transcript and the transcript
     says that you were not forced or —

     [Appellant]: If you sentence me, I’m going to blow your fucking
     face off.

     The Court: Okay. I will say for the record that in your mitigation,
     the only thing that I found - -

     Deputy Sheriff: You’ve got to wait until the Judge is done, sir.

     The Court: -- is that you did enter a plea of nolo contendere. You
     apparently as a child - -

     [Appellant]: I don’t give a flying fuck. If you sentence me, I’m
     going to blow your fucking face off and your grandchildren, too.
     You fucking, dick-eating bitch, do you not understand that? I
     don’t have a fuck you about her being no judge. Do you not
     understand that? I will shove a fucking curling iron up your
     fucking granddaughter’s fucking pussy. Do you understand me?




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      The Court: Okay. [Appellant] will be removed from the courtroom
      for obvious reasons. I’ll let you know what your sentence is.

      [Appellant]: Suck my dick you fucking bitch.

      The Court: Well, I would rather not.

Id. at 3-4. The trial court then imposed the sentence described above.

      On May 4, 2017, through Attorney Marcus, Appellant filed post-sentence

motions. Subsequently, through new counsel, Appellant filed amended post-

sentence motions. On August 31, 2017, the trial court denied post-sentence

relief. This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises two issues in this appeal:

      1. Whether the trial court erred in denying [Appellant’s] oral, pre-
      sentencing request to withdraw his pleas of nolo contendere?

      2. Whether the trial court’s aggregate sentence of twenty-five
      (25) to fifty (50) years of incarceration was manifestly excessive
      and an abuse of discretion?

Appellant’s Brief at 5.

      Courts treat motions to withdraw nolo contendere pleas in the same

manner as motions to withdraw guilty pleas. Commonwealth v. Miller, 748

A.2d 733, 735 (Pa. Super. 2000). Thus, as is the case when we review an

order denying a motion to withdraw a guilty plea, “we will not disturb the

court’s decision on such motion unless the court abused that discretion."

Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013). When the

defendant moves to withdraw his nolo plea before sentencing, “[a]lthough


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there is no absolute right to withdraw a [nolo] plea . . . it is clear that a request

made [b]efore sentencing . . . should be liberally allowed.” Commonwealth

v. Forbes, 299 A.2d 268, 271 (Pa. 1973). Further, “[i]f the trial court finds

any fair and just reason, withdrawal of the plea before sentence should be

freely permitted, unless the prosecution [will be] substantially prejudiced.”

Id.

      In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), our

Supreme Court, breaking from prior precedent, held that a bare assertion of

innocence is no longer a fair and just reason permitting a pre-sentence

withdrawal of a guilty plea. Instead, “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.” Id., 115 A.3d at 1292. The accused must

make “some colorable demonstration, under the circumstances, such that

permitting withdrawal of the plea would promote fairness and justice.” Id.

      Just as bare assertions of innocence no longer provide sufficient reason

to withdraw a guilty plea prior to sentencing, neither do Appellant’s bare

assertions of “coercion” entitle him to pre-sentence withdrawal of his nolo plea

in the case at bar. Appellant made an unsupported claim that his attorney

“coerced” him into a nolo plea, and when the court began to express its

disagreement, he interrupted with a string of vile epithets and threats toward

the court. Through his own misconduct, Appellant prevented the court from

conducting a proper or rational evidentiary hearing on his motion. The court


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J-S30018-18


properly exercised its discretion under these circumstances to proceed with

sentencing.

       In his second argument, Appellant contends that the trial court abused

its   discretion   by   imposing   an   aggregate   sentence   of   25-50   years’

imprisonment. Appellant presents a challenge to the discretionary aspects of

sentence.

       “A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right.” Commonwealth v. Grays,

167 A.3d 793, 815 (Pa. Super. 2017). Before we can reach the merits of a

discretionary aspects challenge,

       [w]e conduct a four part analysis to determine: (1) whether
       appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
       and 903; (2) whether the issue was properly preserved at
       sentencing or in a motion to reconsider and modify sentence, see
       [Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal
       defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
       question that the sentence appealed from is not appropriate under
       the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 815–16. Here, Appellant filed a timely notice of appeal, preserved this

issue in post-sentence motions, and included a statement in his brief in

compliance with Pa.R.A.P. 2119(f). Therefore, we must determine whether

Appellant has presented a substantial question that his sentence is not

appropriate under the Sentencing Code.

       “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Caldwell, 117 A.3d

763, 768 (Pa. Super. 2015) (en banc). “While a bald claim of excessiveness

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does not present a substantial question for review, a claim that the sentence

is manifestly excessive, inflicting too severe a punishment, does present a

substantial question.” Commonwealth v. Haynes, 125 A.3d 800, 807–08

(Pa. Super. 2015).   Therefore, we shall consider the merits of Appellant’s

sentencing issue.

      “In reviewing a challenge to the discretionary aspects of sentencing, we

evaluate the court's decision under an abuse of discretion standard.”

Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa. Super. 2011). Further,

“this Court’s review of the discretionary aspects of a sentence is confined by

the   statutory   mandates   of   42    Pa.C.S.[A.]   §   9781(c)   and   (d).”

Commonwealth v. Macias, 968 A.2d 773, 776–77 (Pa. Super. 2009).

Section 9781(c) directs:

      The appellate court shall vacate the sentence and remand the case
      to the sentencing court with instructions if it finds:

      (1) the sentencing court purported to sentence within the
      sentencing guidelines but applied the guidelines erroneously;

      (2)    the sentencing court sentenced within the sentencing
      guidelines but the case involves circumstances where the
      application of the guidelines would be clearly unreasonable; or

      (3) the sentencing court sentenced outside the sentencing
      guidelines and the sentence is unreasonable.

      In all other cases the appellate court shall affirm the sentence
      imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).




                                       -9-
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      Section 9781(d) directs that the appellate court, in reviewing the record,

shall have regard for:

      (1) The nature and circumstances of the offense and the history
      and characteristics of the defendant.

      (2) The opportunity of the sentencing court to observe the
      defendant, including any presentence investigation.

      (3) The findings upon which the sentence was based.

      (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

      In the present case, Appellant committed a pattern of violent and

disturbing crimes, including (1) pointing a firearm at various victims; (2)

repeatedly threatening to kill his girlfriend, her little daughter, police officers,

and the judge who presided over his preliminary hearing; (3) striking his

girlfriend with a firearm; (4) resisting arrest, and (5) defecating in a police

vehicle.   His prior criminal history is lengthy as well.          The trial court

summarized Appellant’s background as follows:

      [Appellant’s] prior [offenses] start[ed] in 2002 . . . with the charge
      of possession with intent to deliver; a 2002 escape; 2002,
      institutional vandalism; 2004, possession with intent to deliver
      where he was sentenced to 4 to 8 years and maxed out, was
      released from custody March 14th, of 2015; in 2015, there was a
      conviction for flight, an additional conviction for open lewdness.
      [Appellant] was in the community having been released from the
      state correctional institution for approximately six months before
      the instant arrest. His prior offenses began in [19]99 when he
      was convicted of three counts of robbery and one count of escape.
      His juvenile record began at age 12 and throughout his teenage
      years he was in a series of placements through the juvenile court
      facility, and was transferred back and forth because of physical
      and verbal abuse.

                                      - 10 -
J-S30018-18



      [Appellant] admits to daily drug use. He has no job history.
      [Appellant] has not done a single thing positive in his life. Family
      support has been offered a number of times, he always turned his
      back on it. And apparently he does better when he is in placement
      and is forced to take his medication. [Appellant] has very little, if
      any, mitigation in his behalf. He is a dangerous and violent
      person. He frequently uses drugs and guns in his criminal activity.
      He is an abuser both of his intimate partner as well as strangers.
      I feel that he is not a candidate for rehabilitation. He’s been in jail
      both in the state system and the county system and that has not
      deterred any continued criminal relief. The record will reflect that
      [Appellant] is not RRRI eligible.

N.T., 4/26/17, at 5-6. Appellant’s present and past crimes, along with his

shocking behavior at sentencing, establish that he is a violent and unstable

individual not susceptible to rehabilitation. Thus, the trial court acted within

its discretion in imposing a sentence of 25-50 years’ imprisonment.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/2018




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