J-S65010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

VINCENT VILLONE,

                            Appellant                No. 2368 EDA 2014


             Appeal from the Judgment of Sentence July 14, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014653-2012


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED DECEMBER 08, 2015

        Vincent Villone appeals from the judgment of sentence of twenty-five

to fifty years’ incarceration, imposed July 14, 2014, following a negotiated

guilty plea to charges of third-degree murder, carrying a firearm without a

license, and possessing an instrument of crime.1      Additionally, his court-

appointed counsel, James A. Lammendola, Esq., seeks to withdraw his

representation of Appellant pursuant to Anders v. California, 386 U.S. 738

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

affirm the judgment of sentence and grant counsel’s petition to withdraw.

        In July 2014, Appellant entered a negotiated guilty plea to the above-

listed charges.     Appellant agreed that the Commonwealth could establish,
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1
    See 18 Pa.C.S. §§ 2502(c), 6106(a)(1), and 907(a), respectively.
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based upon eyewitness accounts, medical and ballistics evidence, and a

confession made by him to the police, that Appellant shot Richard Anthony

Jacovini-Nebbio twice during a drug transaction in October 2012. See Notes

of Testimony (N.T.), 07/14/2014, at 37-49. Mr. Jacovini-Nebbio died from

his wounds. Id.

      Following a lengthy colloquy, the trial court accepted Appellant’s plea

and imposed sentence.      Id. at 68.   Notably, Appellant did not seek to

withdraw his plea prior to the imposition of sentence.   The court apprised

Appellant of his post-sentence and appellate rights. Id. at 71-73. Appellant

did not file post-sentence motions. However, Appellant timely appealed and

filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a

responsive opinion.

      In February 2015, Attorney Lammendola entered his appearance on

Appellant’s behalf.   In May 2015, Attorney Lammendola filed a petition to

withdraw from representing Appellant.     He has also filed an Anders brief,

asserting that there are no non-frivolous issues that could be raised in this

appeal.

      This Court must first pass upon counsel's petition to withdraw
      before reviewing the merits of the underlying issues presented
      by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
      287, 290 (Pa. Super. 2007) (en banc).

      Prior to withdrawing as counsel on a direct appeal under
      Anders, counsel must file a brief that meets the requirements
      established by our Supreme Court in Santiago. The brief must:




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        (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.

     Santiago, 978 A.2d at 361. Counsel also must provide a copy
     of the Anders brief to his client. Attending the brief must be a
     letter that advises the client of his right to: “(1) retain new
     counsel to pursue the appeal; (2) proceed pro se on appeal; or
     (3) raise any points that the appellant deems worthy of the
     court[']s attention in addition to the points raised by counsel in
     the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
     353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
     (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.”    Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

     Here, Attorney Lammendola’s Anders brief complies with the above-

stated requirements.   He includes a summary of the relevant factual and

procedural history; he refers to portions of the record that could arguably

support Appellant’s claims; and he sets forth his conclusion that Appellant’s


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appeal is frivolous. He explains his reasons for reaching that determination,

supporting his rationale with citations to the record and pertinent legal

authority. Attorney Lammendola also states in his petition to withdraw that

he has supplied Appellant with a copy of his Anders brief, and he attaches a

letter directed to Appellant in which he informs him of the rights enumerated

in Nischan.          Accordingly, counsel has complied with the technical

requirements for withdrawal.

       We will now independently review the record to determine if

Appellant’s claims are frivolous, and to ascertain whether there are other,

non-frivolous issues Appellant could pursue on appeal.            According to

Attorney Lammendola, Appellant contends that (1) there was no factual

basis to support his plea, and (2) his guilty plea was not knowing, intelligent,

and voluntary.      See Appellant’s Anders Brief at 11; see also Pa.R.A.P.

1925(b) Statement, 08/28/2014.2

       Appellant challenges the validity of his guilty plea. An appellant must

preserve a challenge to the validity of a guilty plea during the plea colloquy

or by filing a post-sentence motion. See Commonwealth v. Lincoln, 72

A.3d 606, 609-10 (Pa. Super. 2013). Failure to do so results in waiver. Id.

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2
  We have reversed the order of Appellant’s claims for ease of analysis, as
the introduction of an adequate, factual basis of his crimes is a specific
prerequisite to the more general conclusion that Appellant’s plea was
knowing, intelligent, and voluntary.




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Here, Appellant failed to preserve a challenge to his plea. Accordingly, we

deem it waived.3

       Absent waiver, Appellant’s claims are nonetheless frivolous.

       To be valid, a guilty plea must be knowingly, voluntarily and
       intelligently entered. [A] manifest injustice occurs when a plea
       is not tendered knowingly, intelligently, voluntarily, and
       understandingly. The Pennsylvania Rules of Criminal Procedure
       mandate pleas be taken in open court and require the court to
       conduct an on-the-record colloquy to ascertain whether a
       defendant is aware of his rights and the consequences of his
       plea. Under [Pa.R.Crim.P.] 590, the court should confirm, inter
       alia, that a defendant understands: (1) the nature of the charges
       to which he is pleading guilty; (2) the factual basis for the plea;
       (3) he is giving up his right to trial by jury; (4) and the
       presumption of innocence; (5) he is aware of the permissible
       ranges of sentences and fines possible; and (6) the court is not
       bound by the terms of the agreement unless the court accepts
       the plea. The reviewing Court will evaluate the adequacy of the
       plea colloquy and the voluntariness of the resulting plea by
       examining the totality of the circumstances surrounding the
       entry of that plea. Pennsylvania law presumes a defendant who
       entered a guilty plea was aware of what he was doing, and the
       defendant bears the burden of proving otherwise.

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014) (internal

citations and quotation marks omitted).

       Specifically, Appellant asserts that the Commonwealth failed to

establish a factual basis for his crimes.        A sufficient factual basis exists

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3
  Under certain limited circumstances in the context of an Anders appeal,
we will review the merits of an issue otherwise waived.              See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (examining
the merits of a challenge to discretionary aspects of a sentence where
counsel failed to include Pa.R.A.P. 2119(f) statement within an Anders
brief).



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where “the facts acknowledged by the defendant constitute the offense(s)

charged[.]”   Commonwealth v. Young, 695 A.2d 414, 417 (Pa. Super.

1997).

      Here, Appellant pleaded guilty to third-degree murder, carrying a

firearm without a license, and possessing an instrument of crime. See, e.g.,

Commonwealth v. Morris, 958 A.2d 569, 576 (Pa. Super. 2007) (defining

third-degree murder as “a killing which is neither intentional nor committed

during the perpetration of a felony, but contains the requisite malice”);

Commonwealth v. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012) (accepting as

sufficient a stipulation that defendant was not licensed to carry a firearm);

Commonwealth v. Monroe, 422 A.2d 193, 195 (Pa. Super. 1980)

(accepting as sufficient testimonial evidence that a defendant, who used a

firearm to shoot victim, possessed an instrument of crime).

      The Commonwealth set forth the factual basis of Appellant’s crimes in

detail.   See N.T. at 37-49.   According to the Commonwealth, eyewitness

testimony would establish that Appellant shot the victim twice. Id. at 43,

46. The medical examiner would testify that the cause of death was gunshot

wounds to the lower abdominal area and that the manner of death was

homicide. Id. at 40. Ballistics evidence would establish that both gunshots

originated from the same .380 caliber firearm.     Id. at 47-48.    Appellant

confessed his guilt to the police two days after the shooting.     Id. at 47.

Appellant also stipulated that he was not licensed to carry a firearm. Id. at


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66-67.       Finally,   Appellant   acknowledged    that   the   Commonwealth’s

representation was “a fair account [of] what happened.” Id. at 49. These

facts, acknowledged by Appellant, constituted the basis for the crimes

charged.

      More generally, the trial court comported with the requirements of

Rule 590.     The court engaged Appellant in a lengthy colloquy, apprising

Appellant of his rights, the nature of the charges against him, and the

factual basis of those charges.         See N.T. at 7-29, 29-37, and 37-49.

Appellant stated repeatedly that he understood the proceedings and that he

was entering his guilty plea knowingly, intelligently, and voluntarily.      Id.;

see also Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. Super.

1999) (“A defendant is bound by the statements he makes during his plea

colloquy, and may not assert grounds for withdrawing the plea that

contradict   statements     made    when   he   pled.”).    Moreover,   Appellant

acknowledged that he understood and willingly signed a written, guilty plea

colloquy form.          Id. at 56-57.      Based upon the totality of these

circumstances, Appellant’s plea was knowing, intelligent and voluntary, and

we discern no manifest injustice.

      For the above reasons, Appellant’s claims are frivolous. Moreover, our

review of the record reveals no other non-frivolous issues Appellant could

assert on appeal.

      Judgment of sentence affirmed. Petition to withdraw granted.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




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