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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
                 v.                     :
                                        :
RAFAEL RIVERA,                          :
                                        :
                       APPELLANT        :
                                        :     No. 952 EDA 2016

        Appeal from the Judgment of Sentence November 16, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0006783-2015

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                            FILED APRIL 10, 2017

     Appellant, Rafael Rivera, appeals from his Judgment of Sentence of 2-

4 years’ incarceration, following his nolo contendere plea to felony charges

of Possession with Intent to Deliver (“PWID”), Possession of a Firearm,

Firearms Not to be Carried without a License, and Conspiracy to PWID, and

misdemeanor charges of Intent to Possess a Controlled Substance by a

Person Not Registered, Carrying a Firearm in Public in Philadelphia, and

Possession of an Instrument of Crime.1 We affirm.

     On September 8, 2015, after a thorough colloquy discussed infra,

Appellant entered an open nolo contendere plea to the above charges.



1
  35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 6105(a)(1), 18 Pa.C.S. §
6106(a)(1), 18 Pa.C.S. § 903, 35 P.S. § 780-113(a)(16), 18 Pa.C.S. § 6108,
and 18 Pa.C.S. § 907(a), respectively.
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      On November 16, 2015, the court held a sentencing hearing at which

it engaged counsel in a comprehensive discussion of the court’s sentencing

options.   During this discussion, but prior to the court placing its final

sentencing determination on the record, Appellant’s counsel stated, “He

wants, Your Honor, he wants to withdraw.” N.T. 11/16/15, at 33. The court

did not rule on Appellant’s request to withdraw his guilty plea, and Appellant

did not object further to the sentence announced in court.2       Following the

hearing, the court sentenced Appellant to the above term of incarceration.

      Appellant timely filed a Motion for Reconsideration of Sentence,

seeking to withdraw his nolo contendere plea and challenging the legality of

his sentence on the misdemeanor charges.        The court granted Appellant’s

Motion in part, resentencing Appellant to no further penalty on the

misdemeanor charges.3      Appellant filed a timely Notice of Appeal from his

Judgment of Sentence on March 24, 2016.

      Appellant raises the following two issues on appeal:



2
  In fact, it was not the court, but Appellant’s counsel, that placed the court’s
final sentencing determination on the record. The court directed Appellant’s
counsel to “see if [Appellant] understands the sentence and advise him.”
N.T. at 35. Appellant’s counsel then stated, “So the sentence Your Honor, if
I understand is two to four on the open, which is No. 9 on the list. Two to
four plus three-years[’] probation, and there’s a consecutive one to two in
the VOP, which is No. 8 on the Court’s list?” Id. To which the court
responded, “Yes.” Id.
3
  The court did not expressly rule on the portion of the Motion in which
Appellant again sought to withdraw his nolo contendere plea.



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        1. Was the evidence insufficient to establish (and was the
        plea colloquy therefore deficient to establish a factual basis
        for the plea) that [Appellant] possessed any firearm or
        instrument of crime (required for title 18, sections 6105,
        6106, 6108, and 907 (a firearm was found in a vacant lot
        that also had controlled substances connected to
        [Appellant], but other people had access to that lot and
        there was no evidence connecting [Appellant] to the
        firearm))? This issue includes, pursuant to Pa.R.App.Proc.
        1925(b), all subsidiary questions, including that the trial
        court erred in denying [Appellant’s] [M]otion to [W]ithdraw
        the plea during the colloquy, and/or before sentence was
        imposed, and/or for the “factual basis”-related relief
        requested in either of the two written [P]ost-[S]entence
        [M]otions.

        2. Did the trial court err in denying the written [M]otion for
        [R]econsideration of [S]entence because the sentence for
        one or more of the counts was in or above the aggravated
        range of the guidelines without an adequate on-the-record
        justification; and/or in the alternative because (with
        respect to counts 1-3 and 5-7) the court failed correctly to
        calculate the guidelines, failed to state reasons for
        departing from the standard and/or aggravated range,
        and/or violated the fundamental norms of sentencing?

Appellant’s Brief at 2 (footnotes omitted); see also Appellant’s Pa.R.A.P.

1925(b) Statement, 4/26/16, at 1-2 (unpaginated).

     In his first issue, Appellant claims that his plea to gun possession

charges was involuntary because the Commonwealth did not present

sufficient evidence during his plea colloquy to establish that it was the

Appellant who possessed a firearm or instrument of crime.4 Appellant avers,

therefore, that the trial court erred in denying his Motion to Withdraw his

4
  Appellant waived his challenge to the sufficiency of the evidence when he
entered his nolo contendere plea. See Commonwealth v. Moore, 468
A.2d 791, 797 (Pa. Super. 1983).



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plea made “during the colloquy and/or before the sentence was imposed,

and/or for the “factual basis”-related relief requested in either of the two

written [P]ost-[S]entence Motions.”     Appellant’s Brief at 3-4.   Essentially,

Appellant claims that the court erred in denying his Motions to Withdraw his

Plea made both before and after the court sentenced him. In either case,

Appellant is not entitled to relief.

      With respect to a Motion to Withdraw a plea made before sentencing,

Pa.R.Crim.P. 591(A) provides that, the court may, in its discretion, permit

the withdrawal of a plea of guilty or nolo contendere. Pa.R.Crim.P. 591(A).

The Supreme Court of Pennsylvania recently clarified the standard of review

for considering a trial court’s decision regarding a defendant’s pre-sentence

Motion to Withdraw a plea:

         [T]rial courts have discretion in determining whether a
         withdrawal request will be granted; such discretion is to be
         administered liberally in favor of the accused; and any
         demonstration by a defendant of a fair-and-just reason will
         suffice to support a grant, unless withdrawal would work
         substantial prejudice to the Commonwealth.

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015)

(holding that there is no per se rule regarding a pre-sentence request to

withdraw a plea, and a bald assertion of innocence is not a sufficient reason

to require a court to grant such a request.).

      However, if a defendant attempts to withdraw a plea after sentencing,

his Motion is “subject to higher scrutiny[.]” Commonwealth v. Broaden,

980 A.2d 124, 129 (Pa. Super. 2009).


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          A defendant must demonstrate that manifest injustice
          would result if the court were to deny his post-sentence
          motion to withdraw a guilty plea. Manifest injustice may
          be established if the plea was not tendered knowingly,
          intelligently, and voluntarily. In determining whether a
          plea is valid, the court must examine the totality of
          circumstances surrounding the plea. A deficient plea does
          not per se establish prejudice on the order of manifest
          injustice.

Id. (citations and quotation marks omitted).

        Before a court may accept a guilty plea, it must be satisfied that there

is a sufficient factual basis for the plea. Commonwealth v. Yeomans, 24

A.3d 1044, 1048 (Pa. Super. 2011).

        With respect to Appellant’s claim that the court erred in denying his

pre-sentencing Motion to Withdraw, we find no error, as Appellant failed to

place before the court any reasons in support of his Motion.        Appellant’s

Motion, such that it was, consisted only of the assertion by his counsel that,

“He wants, Your Honor, he wants to withdraw.”          In the absence of any

reasons placed on the record in support, the trial court did not abuse its

discretion in denying Appellant’s oral pre-sentence Motion to Withdraw his

Plea.

        We similarly find Appellant’s alternate claim—that the court erred in

denying his post-sentence Motion to Withdraw his Plea—lacking in merit.

Appellant argues that his nolo contendere plea was involuntary because it

was premised on an allegedly deficient factual basis. Appellant’s Brief at 4.




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However, our review of the record reveals that the Commonwealth’s factual

basis was, indeed, sufficient.

      During the court’s plea colloquy with Appellant, the Commonwealth

provided the following factual basis for the plea:

         Back on April 24, 2015, at approximately 6:00 p.m.,
         Officer Walsh (sp) was doing a surveillance along with
         Officer Cessna (sp) on the 2900 block of Rosehill Street
         here in Philadelphia. They observed [Appellant], uh, being
         approached by a person later identified as a Jamie (sp)
         Pastor (sp) Rivera.

         At that time, he – Mr. Pastor (sp) Rivera handed
         [Appellant] an unknown amount of U.S. currency at which
         point [Appellant] went through his pockets, couldn’t find
         anything, then undid his belt and went into the front of his
         pants. At which point he shrugged his shoulders and
         motioned for Pastor (sp) Rivera to go southbound. At
         which point Mr. Pastor (sp) Rivera did walk southbound out
         of view. After which [Appellant] went into a vacant lot that
         was located on the east side of Rosehill.

         As this was going on, Officer Cessna (sp) observed the co-
         defendant, Samuel Torres[,] also on the east side of the
         street engaging in a hand-to-hand transaction with a buyer
         later identified as Christopher Schwartz (sp). That um –
         let’s see.

         The co-defendant had accepted U.S. currency, went into
         that vacant lot, returned, and gave the buyer an unknown
         object, which was later found to be one orange zip lock
         packet of crack cocaine. Shortly after this, [Appellant] and
         the co-defendant[,] Mr. Torres, both met up on the east
         side of the street.      They exchanged some currency
         between each other, and they separated, but they both
         stayed on Rosehill Street.

         Shortly after that, Mr. Pastor (sp) Rivera, who was the
         person that initially engaged [Appellant], returned to the
         block again and engaged in a hand-to-hand transaction
         with [Appellant]. At which point, afterwards, this – Mr.


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         Pastor (sp) Rivera, was stopped with one clear heat-sealed
         packet stamped “ENP” (sp) containing heroin. Shortly
         after which – after that, an unknown male approached
         both [Appellant] and the co-defendant. There was a hand-
         to-hand transaction involving the co-defendant.       That
         buyer was not stopped.

         After that last purchase, the co-defendant got on a bicycle
         which he was observed getting on to several times
         throughout the surveillance. Mr. Torres went up and down
         the streets. Officers, fearing that the co-defendant was
         going to be leaving the scene, concluded the surveillance.

         Co-defendant was stopped with $202.00 U.S. currency as
         well as one brown cylinder of marijuana. [Appellant] was
         stopped with $15.00 U.S. currency. Officers went into that
         vacant lot where both [Appellant] and the co-defendant
         were going into. They found 11 packets of heroin in a
         clear zip lock packet stamped “ENP” (sp).

         Further in the lot they found a larger bag containing 112
         packets of heroin with the same stamp, “ENP” (sp). And
         also – one second, let me just make sure this part is clear
         – directly next to that bag of 112 packets of heroin was a
         silver Walther PPK chambered in 380 Caliber loaded with
         six in the magazine and one in the chamber. [Appellant]
         at the time, due to his prior conviction[,] was not eligible
         to possess a gun, and that gun is operable.

N.T. 9/8/15, at 19-22.

      We conclude that the Commonwealth’s evidence as set forth, supra, is

sufficient for the finder of fact to infer that Appellant possessed the gun and

drugs found in the lot. Accordingly, Appellant’s claim, that he entered his

plea involuntarily because of allegedly deficient supporting facts, fails.

      In his second issue, Appellant claims that the trial court abused its

discretion by imposing an allegedly excessive sentence.          A claim of this

nature   challenges   the   discretionary   aspects   of   Appellant’s   sentence.


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Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (citation

omitted).      Appellant “must therefore petition for permission to appeal those

issues,   as    the   right   to   pursue   such   a   claim   is   not   absolute.”

Commonwealth v. Finnecy, 135 A.3d 1028, 1031 (Pa. Super. 2016)

(citation and internal quotation marks omitted). In addition,

          When challenging the discretionary aspects of the sentence
          imposed, an appellant must present a substantial question
          as to the appropriateness of the sentence.              Two
          requirements must be met before we will review this
          challenge on its merits. First, an appellant must set forth
          in his brief a concise statement of the reasons relied upon
          for allowance of appeal with respect to the discretionary
          aspects of a sentence [pursuant to Pa.R.A.P. 2119(f)].
          Second, the appellant must show that there is a
          substantial question that the sentence imposed is not
          appropriate under the Sentencing Code.

Id.

      Where an appellant’s brief does not contain a statement under Rule

2119(f) and the Commonwealth objects, the appellant has waived this issue

on appeal.      Commonwealth v. Montgomery, 861 A.2d 304, 308 (Pa.

Super. 2004). Here, Appellant has not included a 2119(f) Statement in his

Brief, and the Commonwealth objected. Therefore, Appellant’s challenge to

the discretionary aspects of his sentence is waived.

      Judgment of Sentence affirmed.

      President Judge Emeritus Ford Elliott joins this Memorandum.

      Judge Bowes Concurs in Result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/10/2017




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