J-S15037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ABDUL RASHEED                              :
                                               :
                       Appellant               :      No. 1366 WDA 2018

          Appeal from the Judgment of Sentence Entered June 18, 2018
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013839-2016


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                          FILED APRIL 24, 2019

       Appellant, Abdul Rasheed, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following his open

guilty plea to third-degree murder, aggravated assault, persons not to possess

firearms, receiving stolen property, firearms not to be carried without a

license, false identification to law enforcement, and possession of heroin.1 We

affirm.

       In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

       Appellant raises the following issue for our review:

____________________________________________


1 18 Pa.C.S.A. §§ 2502(c), 2702(a)(1), 6105(a)(1), 3925(a), 6106(a)(1),
4914(a), and 35 Pa.C.S.A. § 780-113(a)(16), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S15037-19


         DID THE TRIAL COURT ERR IN DENYING APPELLANT’S
         MOTION TO WITHDRAW HIS GUILTY PLEA?

(Appellant’s Brief at 3).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Anthony M.

Mariani, we conclude Appellant’s issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed November 30, 2018, at 8-13 unpaginated)

(finding: on date of sentencing, prior to imposition of sentence, Appellant read

pro se statement (while represented by counsel) seeking to withdraw his guilty

plea due to “innocence, coercion, duress”; Appellant provided no reasons to

support these contentions and made no demonstration that withdrawal of his

plea would promote fairness and justice; record shows Appellant understood

nature of charges and entered plea knowingly and voluntarily; ADA presented

factual basis for guilty plea, and Appellant did not object; Appellant completed

written colloquy, and court conducted on-record colloquy; at guilty plea

hearing, Appellant stated he was not forced to enter plea and had enough time

to discuss plea with counsel; Appellant failed to develop his allegations of

innocence, coercion, and duress; court properly denied request to withdraw

guilty plea). Accordingly, we affirm on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.




                                      -2-
J-S15037-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2019




                          -3-
                                                                          Circulated 03/29/2019 09:58 AM



                                                                        ORIGINAL
                                                                         Criminal Division
      ·         "        .•   ·                                      'Jept. Of Court Records
     2018 NOV JO AH !· 22                    .          �tlfl11hDrll!..Cuu_     P,A
                                                                            ntv�P
        IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNrY,'PENN:5Y       LY ANIA




                                                                                   n
    OEPT OF CCURT RECORDS     CRIMINAL DIVISION
       CRIMINAL DlVIS!O��
     ALLEGHENY COU�HY, PA                                   r




COMMONWEALTII OF PENNSYLVANIA                       )
                                                    )
          vs.                                       ) CC No. 201613839
                                                    )
ABDUL RASHEED                                       )
                                                    )
                 Defendant.                         )
                                                    )

                                        OPINION
Mariani, J.

                 This is a direct appeal wherein the defendant, Abdul Rasheed, appeals

from the judgment of sentence of June 18, 2018. On May 29, 2018, the defendant pied

guilty before this Court to one count each of Third Degree Murder, Aggravated Assault,

Possession of a Firearm - Prohibited, Receiving Stolen Property, Firearms Not to Be

Carried Without a License, Possession of Heroin and False Identification to Law

Enforcement Officer. Relative to the conviction for Third Degree Murder, this Court

sentenced the defendant to a term of imprisonment of not less than 20 years nor more

than 40 years.      Relative to the convictions for Aggravated Assault, Possession of a

Firearm - Prohibited and Possession of Heroin, this Court sentenced the defendant to

consecutive terms of imprisonment of not less than one year nor more than two years.

The aggregate sentence imposed on the defendant was a term of imprisonment of not less

than 23 years nor more than 46 years.
       On February 6, 2017, Defendant appeared before the court, with court-appointed

counsel, in response to the Commonwealth's motion for a finding of bail ineligibility.

During that proceeding, the Commonwealth's attorney indicated that a witness, who was

specifically identified, would testify that on October 29, 2016, the witness and another

person were walking on a city street when they saw the defendant riding as a passenger in

a vehicle. The vehicle stopped next to them, the defendant got out of the vehicle with a

firearm in his hand and then the defendant demanded money from the witness and her

companion for a debt they owed for drugs. When the witness and her companion

indicated that they didn't have the money, the defendant shot the witness in her right leg.

Both the witness and her companion ran away but, as they did so, the witness' companion

was shot two times, once in the head, once in the trunk. The companion died as a result

of being shot by the defendant.



        The Commonwealth's attorney advised that, due to the facts presented, she would

be seeking first degree and/or second degree murder convictions, and, accordingly,

pursuant to Article 1, Section 14 of the Pennsylvania Constitution, the defendant was not

entitled to bail.



        Other information presented to the court indicated that the surviving victim of the

events of October 29, 2016, did appear at a preliminary hearing in this case which the

defendant attended, and did testify in accordance with the proffer made by the
Commonwealth's attorney. The Court was informed that the surviving victim positively

identified the defendant as the shooter.1



          The Court granted the Commonwealth's motion. In doing so, the Court advised

the defendant that a conviction for murder of the first degree or murder of the second

degree would result in a mandatory sentence of life in prison without the possibility of

parole.



          From the time of the preliminary hearing until the time of the bail hearing, the

defendant was represented by court-appointed counsel. A jury trial was scheduled for

April 17, 2017. However, the trial was postponed on request of defense counsel for

additional trial preparation time and "to provide client with reasonable period of time to

contemplate any offer, if there's going to be one." Trial was rescheduled for July 17,

2017.



          On May 31, 2017, a privately-retained attorney entered his appearance on behalf

of the defendant.        On June 5, 2017, new defense counsel requested               a postponement of
the trial date, advising that, "defense counsel was recently retained and respectfully

requests additional time to obtain discovery and prepare for trial." Trial was rescheduled

for September 7, 2017. On September 6, 2017, privately- retained counsel requested

another postponement for "additional time to review several hours of jail calls recently

disclosed by the Commonwealth." Trial was re-scheduled to January 22, 2018. The



1The   transcript of the preliminary hearing has been made part of the record of this case.
defendant also had a criminal court matter scheduled in the state of New York which

eventually caused another delay of the trial.



        On May 29, 2018, this case was scheduled to proceed as a non-jury trial.2

However, the defendant's counsel requested a postponement because the defendant

wouldn't talk to him and the defendant said he wanted new representation. The court and

the defendant engaged in discussion concerning the defendant's complaints about his

privately-retained attorney. The court told the defendant that if he could obtain another

lawyer to handle his case and be ready to go to trial within two months, the court would

grant one more postponement. At one point, when the defendant was told to talk to his

privately-retained attorney about how he [the defendant] could manage to be ready with

anotherlawyer in two months, the defendant replied, "I don't need to talk to him. I want

another lawyer."



        Nonetheless, the court called a recess in the defendant's case and sent· the

defendant back to the holding area to talk with his privately-retained attorney. After that

recess, the court called the defendant back into the courtroom, but because the

Commonwealth wasn't ready to proceed, another recess was taken for the lunch hour.3



        The defendant appeared before the court with his privately-retained counsel after

lunch. The court had been advised that the defendant intended to enter a guilty plea

pursuant to a plea bargain.           The court addressed the defendant directly about his

2The defendant and his counsel had withdrawn the defendant's request for a jury trial.
3
 For reasons this court can't explain, the lunch hour In the Allegheny County Coli rt of Common Pleas,
Criminal Division, Is generally 90 minutes long.
intentions. The defendant told the court that he had changed his mind about his privately-

retained attorney. The court and the defendant had the following exchange:

                             . The Court: "This morning your lawyer was
                      asking for a postponement. You and he
                      were having trouble communicating, doing
                      things he should have done. You and I had
                      a discussion about various legal points. You
                      went downstairs and talked to your lawyer
                      about what you wanted to do. I also told you
                      if you insisted on, for lack of a better term,
                      firing [privately retained counsel]
                      and wanted to replace him, no more postponements
                      would be granted based on the history of this
                      case which is three defense postponements. That's
                      the last conversation we had. Tell me what you
                      intend to do now and why.
                               The Defendant: Well, I'm taking an open
                      guilty plea to murder of the third-degree because
                      of the reasons set forth. As far as this morning, I'm
                      pleading, and I want to put this behind me.
                               The Court: Did you have enough time to talk
                      to [privately retained counsel] about
                       this?
                               The Defendant: Yes.
                               The Court: Do you understand if you wanted
                       to stop things and get the postponement to get another
                       lawyer, I would give you that chance?
                               The Defendant: Yes.
                               The Court: Do you want to proceed today?
                               The Defendant: Yes."


        The court then read the charges to the defendant, indicating that the minimum

penalty for murder in the first degree for a non-capital case is life imprisonment without

parole. The court also advised the defendant of the maximum sentences at the additional

charges of attempted murder, two counts of robbery, aggravated assault, person not to

possess a firearm, receiving stolen property (firearm), carrying a firearm in a vehicle

without a license, possession of heroin with intent to deliver (second or subsequent),
simple possession of heroin (second or subsequent) and false identification to law

enforcement.



        The Commonwealth's attorney then advised the court of the plea agreement. The

defendant would plead guilty to third degree murder (first and second degree murder

were withdrawn by amending the murder charge to third degree murder); th.e attempted

murder charge, both robbery charges and the charge of possession of heroin with intent to

deliver would be withdrawn. The defendant would plead guilty to the remaining charges.

The Court would determine sentence.



        The . court stated the maximum possible sentences for the charges to which the ·

defendant was going to plead guilty.               After some discussion with counsel and the

defendant, the court reviewed the terms of the plea agreement with the defendant. The

defendant acknowledged that he agreed to those terms. The court then referred to the

written guilty plea colloquy submitted by the defendant and his counsel." The defendant

indicated that he read and understood each question, provided truthful answers to the

questions and then signed the document.



        The court also engaged in an oral colloquy with the defendant which established,

among other things, by the defendant's direct answers to the court's direct questions, that

the defendant was not forced to enter into the plea agreement, that no other promises

were made to the defendant, and that the defendant was satisfied with the advice and


4
 The written guilty plea colloquy is eleven pages in length, consisting of sixty-eight separate questions
and is part of the record of thls case.
representation of his privately-retained attorney. After confirming that sentencing was to

occur at a later date, the court then addressed the defendant as follows:



                               The Court: Everybody is relying on the
                       fact that you are waiving your right to trial; do
                       you understand that? Is that what is happening
                       here?
                               The Defendant: Yes


       The Commonwealth's attorney indicated that in addition to the affidavit of

probable cause attached to the criminal complaint, factual support for the charges was

supplied through numerous scientific witnesses (whose testimony she summarized) and

documentary evidence which she identified.



        In response to the court's questioning, the defendant indicated that he did not

dispute the factual presentation of the Commonwealth's attorney.            The court then

reviewed with the defendant and counsel the fact that although the Commonwealth's

original theory of the case involved a murder charge that carried a life sentence, by virtue

of the plea agreement which amended the murder charge and withdrew two robbery

charges, the defendant's maximum possible sentence on the murder charge was forty

years in prison, not life without parole. The defendant indicated that he understood that.



        The court asked the defendant if he was pleading guilty to all the charges set forth

in the plea agreement because he was guilty. The defendant answered, "yes."
        On June 18, 2018, the defendant appeared for sentencing. The Commonwealth's

attorney presented the testimony of the mother of the deceased victim. The defendant

then addressed the court. After making complaints about his attorney and about how the

prior court proceeding occurred, the same complaints he had knowingly abandoned on

May 29, 2018, the defendant requested to withdraw his plea "due to innocence, coercion,

duress."



        The court did not permit the defendant to withdraw his guilty plea, noting that the

defendant presented himself at the guilty plea hearing as making a knowing and

voluntary decision, noting that the defendant and his attorney bargained for and receiving

a withdrawal of murder charges which carried life sentences on facts which, if proved

beyond a reasonable doubt, 5 would require that a mandatory life sentence be imposed on

the defendant, and after the Commonwealth relied on the defendant's entering a guilty

plea pursuant to the plea agreement such that trial witnesses were not brought to the

courthouse on the day of sentencing.



        The defendant claims that this court erred by denying his motion to withdraw his

guilty plea. Two different standards exist for reviewing requests to withdraw a guilty

plea, one for pre-sentence requests to withdraw and one for post-sentence requests to

withdraw. Commonwealth v. Aick, 2002 PA Super 189, 802 A.2d 620, 623 (Pa. Super.


5
 It must be emphasized that those facts supported the Commonwealth's theory of felony murder and
were summarized at the ball hearing and the plea hearing for which the defendant offered no dispute.
Additionally, the surviving victim had testified under oath, as to those same facts, at the prellmlnerv
hearing which the defendant attended.
2002). The Supreme Court has explained that there is no absolute right to withdraw a

guilty plea however, a pre-sentence request to withdraw a guilty plea should be liberally

granted when there exists any fair and just reason for the withdrawal. Commonwealth v.

McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976); Commonwealth v. Forbes. 450 Pa. 185,

299 A.2d 268, 271 (1973).      Post-sentence motions for withdrawal, however, are subject

to a higher standard.



        "Although there is no absolute right to withdraw a guilty plea, properly received

by the trial court, it. is clear that a request made before sentencing should be liberally

allowed." Commonwealth v. Kpou, 153 A.3d 1020, 1022 (Pa. Super. 2016). "In

determining whether to grant a presentence motion for withdrawal of a guilty plea, the

test to be applied by the trial courts is fairness and justice." Commonwealth v. Elia, 83

A.3d 254, 262 (Pa. Super. 2013) (cleaned up). Therefore, if the defendant provides a fair

and just reason for wishing to withdraw his or her plea, the trial court should grant it

unless it would substantially prejudice the Commonwealth. Commonwealth v.

Carrasquillo, 631 Pa. 692, 115 A.3d 1284, 1287 (2015) (citation omitted).



        However, as our Supreme Court has admonished, when the basis for a

presentence request to withdraw a guilty plea is based on a claim of actual innocence, "a

bare assertion of innocence is not, in and of itself, a sufficient reason to require a court to

grant [a presentence motion to withdraw a guilty plea]." Carrasquillo, 115 A.3d at 1285.

As set forth in Carasquillo,



                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. The policy of liberality remains extant but has
               its limits, consistent with the affordance of a degree of
               discretion to the common pleas courts.

Id. at 1292


        In this matter, the defendant, while represented by counsel, simply read a

statement to this Court requesting, pro se, that he be permitted to withdraw his guilty plea

due to "innocence, coercion, duress".       The defendant made his request just before

sentence was about to be imposed. He didn't file a motion seeking to withdraw his guilty

plea nor was such a motion presented by him or by his counsel at the beginning of the

sentencing hearing. He provided no reasons to support these contentions and he made no

colorable demonstration that a withdrawal of his plea would promote fairness and justice.



        The defendant did not develop any evidence that he was coerced into entering a

guilty plea.   In Commonwealth v. McCauley, 797 A.2d 920 (2001) the Superior Court,

citing Commonwealth v. Stork, 737 A.2d 789, 790-791 (Pa. Super. 1999), appeal denied,

564 Pa. 709, 764 A.2d 1068 (2000) explained that



               [ o]nee a petitioner has entered a plea of guilty, it is
               presumed that he was aware of what he was doing, and the
               burden of proving involuntariness is upon him. Therefore,
               where the record clearly demonstrates that a guilty plea
               colloquy was conducted, during which it became evident
               that the petitioner understood the nature of the charges
               against him, the voluntariness of the plea is established.
               Determining whether a petitioner understood the
               connotations of his plea and its consequences requires an
               examination of the         totality   of   the   circumstances
               surrounding the plea.



       The minimum inquiry required of a trial court must include the following six

areas: (1) Does the petitioner understand the nature of the charges to which he is pleading

guilty? (2) Is there a factual basis for the plea? (3) Does the petitioner understand that he

has a right to trial by jury? (4) Does the petitioner understand that he is presumed

innocent until he is found guilty? (5) Is the petitioner aware of the permissible ranges of

sentences and/or fines for the offenses charged? (6) Is the petitioner aware that the judge

is not bound by the terms of any plea agreement tendered unless the judge accepts such

agreement? McCauley, 797 A.2d at 920; Commonwealth v. Young, 695 A.2d 414, 417

(Pa. Super. 1997).



       This examination may be conducted by defense counsel or the attorney for the

Commonwealth, as permitted by the judge. Pa. R. Crim. P. 590. Moreover, the

examination does not have to be solely oral. Nothing precludes the use of a written

colloquy that is read, completed, and signed by the petitioner, made part of the record,

and supplemented by some on-the-record oral examination. Commonwealth v. Moser,

921 A.2d 526, 529 (Pa.Super. 2007); see also Comment to Pa.R.Crim.P 590.

Importantly, a defendant who chooses to plead guilty is bound by the statements he or she

makes in open court while under oath and he or she may not later assert grounds for

withdrawing the plea which contradict the statements made at his plea colloquy.

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003) citing Stork, 737 A.2d at
       The record in this case is clear that the defendant understood the nature of the

charges to which he ultimately pled guilty and, therefore, his guilty plea was entered

knowingly and intelligently. The Court reviewed all of the charges filed against the

defendant as well as the charges to which he ultimately pled guilty.         The Assistant

District Attorney presented a factual basis for the guilty plea .and the defendant did not

object to the presentation of the Assistant District Attorney. The defendant completed an

exhaustive written guilty plea colloquy clearly evidencing his awareness of his pertinent

constitutional and procedural rights including, but not limited to, his right to   a jury trial
and the presumption of innocence.     This colloquy is part of the trial court record. The

Court went over some of these rights during an on-the-record colloquy at the sentencing

hearing.   The Court reviewed the original charges contained in the Information and the

charges to which he pied guilty with the defendant and the defendant indicated that he

discussed · those charges with his trial counsel.     The Court specifically outlined the

proposed plea agreement and the defendant orally indicated his understanding of the plea.

agreement. The Court clearly explained the defendant's rights relating to a jury trial.

The defendant acknowledged on the record his decision to waive that right.                 The

defendant also indicated that he was aware of the maximum potential penalties that could

be imposed. The Court also asked the defendant if anyone had forced him to enter the

plea agreement. He responded "No". The defendant stated that he had enough time to

speak with his attorney about his case and that he was satisfied with the advice provided

by counsel. The defendant cannot now contradict the statements he made under oath at

the time of the guilty plea.     The totality of the trial court record indicates that the
defendant knowingly and voluntarily entered his guilty plea. Defendant did not develop

any claims that he was actually innocent or that his guilty plea was induced by coercion

or duress.   The oral pro se request to withdraw his guilty plea was properly denied.

Accordingly, the judgment in this case should be affirmed.




                                            By the Court:

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