J-S21020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    RYAN STANFORD LEE                            :
                                                 :
                        Appellant                :   No. 2819 EDA 2017

            Appeal from the Judgment of Sentence August 17, 2017
    In the Court of Common Pleas of Montgomery County Criminal Division
                      at No(s): CP-46-CR-0006593-2016

BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                   FILED MAY 06, 2019

       Ryan Stanford Lee (Appellant) appeals from the judgment of sentence

imposed following his open guilty plea to third-degree murder and criminal

conspiracy.1         Appellant’s counsel       (Counsel) seeks to   withdraw   from

representation pursuant to Anders v. California, 386 U.S. 738 (1967) and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

grant Counsel’s petition to withdraw and affirm Appellant’s judgment of

sentence.

       The trial court recited the pertinent facts and procedural history of this

case as follows:

       According to the Affidavit of Probable Cause, on the evening of
       March 18, 2011, Appellant was driving his sister’s gray, four-door
       1997 Chevrolet Malibu with tinted windows through the streets of
       Norristown with his friend, Omar Massenburg, riding as the front
____________________________________________


1   18 Pa.C.S.A. §§ 2502(c), 903(a)(1).
J-S21020-19


     seat passenger and Steven Jackson as a rear seat passenger when
     they observed the Victim, seventeen-year-old D’Ravious Dawkins
     (“Victim” or “Dawkins”) walking home from his girlfriend’s house
     along Noble Street near West Oak Street in Norristown Borough,
     Montgomery County. (Affidavit of Probable Cause, filed 7/6/16).
     Massenburg exited the Malibu and approached young Mr. Dawkins
     with the intent of robbing him. (Id.). A witness walking his dog
     in that area later described the encounter to police. He saw the
     two men struggling and heard the younger man ask “why are you
     doing this to me?” (Id. at 2-3). The witness heard a “pop” and
     observed the young man fall to the ground. (Id. at 3). Seconds
     later he observed a four-door sedan pull away on Oak Street
     driving “really fast.” (Id.). Another witness who heard the
     gunshot described a light gray vehicle parked on West Oak Street
     at Noble Street pulling away from the area “pretty fast.” (Id. at
     2).

        At approximately 10:08 p.m., Norristown Borough Police
     Officers responded to the intersection of Noble Street and West
     Oak Street and found the Victim unconscious in the roadway. (Id.
     at 1). At 10:28 p.m., doctors at Montgomery Hospital pronounced
     Dawkins dead. (Id.). Dr. Paul Hoyer, a forensic pathologist,
     performed an autopsy on Mr. Dawkins on March 19, 2011. Dr.
     Hoyer recovered a projectile from the body and opined that Mr.
     Dawkins died from a single gunshot wound to his neck area. (Id.).
     Dr. Hoyer ruled the manner of death a homicide. (Id.).

                               *     *     *

        Following years of diligent police work by the Norristown
     Borough Police Department and Montgomery County Detective
     Bureau, Massenburg was arrested on March 16, 2016, and
     Appellant on July 15, 2016, for the murder of D’Ravious Dawkins.
     The court held a hearing on Appellant’s motion to suppress
     recorded conversations on March 6, 2017, and heard argument on
     numerous pretrial motions on April 3, 2017.

        After granting Appellant’s request for a continuance, the court
     scheduled Appellant’s trial to begin on Monday, April 17, 2017.
     Following a four-day trial before the undersigned, a jury convicted
     Appellant’s co-conspirator Massenburg of second-degree murder
     and other offenses on Friday, April 14, 2017. On the day Appellant
     was to select a jury, Counsel informed the court that Appellant


                                    -2-
J-S21020-19


      wished to enter open pleas of guilty to the charges of third-degree
      murder and criminal conspiracy to commit third-degree murder.

Trial Court Opinion, 11/7/18, at 1-4 (footnotes omitted).

      On April 17, 2017, Appellant pled guilty to the aforementioned crimes.

On May 8 and 15, 2017, Appellant mailed the trial court two letters expressing

his desire to withdraw his guilty plea, in which he alleged that he entered his

plea under duress and that he did not receive enough time to contemplate his

options. On June 7, 2017, the trial court held a hearing regarding Appellant’s

desire to withdraw his guilty plea. Ultimately, on July 17, 2017, the trial court

denied Appellant’s request to withdraw his guilty plea. On August 17, 2017,

the trial court sentenced Appellant to an aggregate term of 17½ to 35 years

of incarceration.

      Appellant did not file post-sentence motions. On September 5, 2017,

Appellant filed a notice of appeal. Both the trial court and Appellant have

complied with Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Counsel has filed a petition to withdraw and brief pursuant

to Anders and Santiago. There are particular mandates that counsel seeking

to withdraw pursuant to Anders must follow.          These mandates and the

significant protection they provide to an Anders appellant arise because a

criminal defendant has a constitutional right to a direct appeal and to counsel

on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super.

2007). We have summarized these requirements as follows:




                                      -3-
J-S21020-19


      Direct appeal counsel seeking to withdraw under Anders must file
      a petition averring that, after a conscientious examination of the
      record, counsel finds the appeal to be wholly frivolous. Counsel
      must also file an Anders brief setting forth issues that might
      arguably support the appeal along with any other issues necessary
      for the effective appellate presentation thereof.

      Anders counsel must also provide a copy of the Anders petition
      and brief to the appellant, advising the appellant of the right to
      retain new counsel, proceed pro se or raise any additional points
      worthy of this Court’s attention.

      If counsel does not fulfill the aforesaid technical requirements of
      Anders, this Court will deny the petition to withdraw and remand
      the case with appropriate instructions (e.g., directing counsel
      either to comply with Anders or file an advocate’s brief on
      Appellant’s behalf).

Id. (citations omitted).

      Additionally, there are requirements as to precisely what an Anders

brief must contain:

      [T]he Anders brief that accompanies court-appointed counsel’s
      petition to withdraw … must: (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. When faced with a purported Anders brief, we

may not review the merits of the underlying issues without first deciding

whether     counsel   has   properly   requested    permission    to   withdraw.

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation

omitted).    If counsel has met these obligations, “it then becomes the


                                       -4-
J-S21020-19


responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.” Santiago, 978 A.2d at 354 n.5.

      Instantly, we conclude that Counsel has complied with the requirements

outlined above. Counsel has filed a petition with this Court stating that after

reviewing the record, he finds this appeal to be wholly frivolous. Petition to

Withdraw as Counsel, 12/24/18, ¶ 10.          In conformance with Santiago,

Counsel’s brief includes summaries of the facts and procedural history of the

case and discusses the only issue he believes might arguably support

Appellant’s appeal. See Anders Brief at 5-18. Counsel’s brief sets forth his

conclusion that the appeal is frivolous and includes citation to relevant

authority. See id. at 15-18. Finally, Counsel has filed with this Court the

letter that he sent to Appellant, which enclosed Counsel’s petition and Anders

brief and advised Appellant of his right to proceed pro se or with private

counsel and to raise any additional issues that he deems worthy of this Court’s

consideration. We therefore turn to the merits of Appellant’s case.

      The single issue presented by Counsel in the Anders brief is whether

the trial court erred when it denied his request to withdraw his guilty plea.

Appellant asserts that in his letters to the trial court in which he requested the

withdrawal of his guilty plea, he provided the court with an explanation of

events indicative of his innocence and alleges that he was under duress when




                                      -5-
J-S21020-19


he made the plea because he did not have sufficient time to consider his

options and discuss them with Counsel.

      Preliminarily, we recognize that at “any time before the imposition of

sentence, the court may, in its discretion, permit, upon motion of the

defendant, or direct sua sponte, the withdrawal of a plea of guilty or nolo

contendere and the substitution of a plea of not guilty.” Pa.R.Crim.P 591(A).

“The decision to grant or deny a motion to withdraw a guilty plea rests within

the trial court’s discretion, and 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).

      With respect to pre-sentence motions to withdraw a guilty plea, our

Supreme Court, in Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa.

2015), explained:

          [T]here is no absolute right to withdraw a guilty plea; trial
      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. The perfunctory fashion in which these principles
      were applied . . . lent the impression that this Court had required
      acceptance of a bare assertion of innocence as a fair-and-just
      reason.

                                  *     *      *

         [T]he 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

                                       -6-
J-S21020-19


     the affordance of a degree of discretion to the common pleas
     courts.

Id. at 1291-92.

     Here, the trial court detailed its decision to deny Appellant’s pre-

sentence request to withdraw his guilty plea as follows:

         Instantly, as fairly described by his counsel, Appellant provided
     an “outline of the facts” (N.T. Motion to Withdraw Guilty Plea,
     6/7/17 at 5) by stating “maybe I was there to pick someone up
     and they was taking to[o] long so the passenger went to tell the
     person to hurry up an[d] on the[ir] way to the door they cross
     paths with Dawkins an[d] decided to freelance a[d] [sic] rob him.”
     (Commonwealth Exhibit A, at 1). Appellant had the opportunity
     to expand on this outline of the facts with testimony at the hearing
     on his motion to withdraw his guilty plea, but [chose] not to do
     so. He offered no supporting evidence. Even in his May 2017
     letters to the court suggesting a claim of innocence, Appellant
     admitted at a minimum that he was driving that night and present
     at the scene of the murder.

        In contrast, the Commonwealth offered evidence from several
     sources, including Appellant’s own words, in support of Appellant’s
     guilt. In short, Appellant’s claim is belied by the record, both that
     presented at the hearing on the motion to withdraw guilty plea as
     well as the factual basis adopted by Appellant at his guilty plea
     hearing on April 17, 2017, the day he was to begin trial on charges
     including first- and second-degree murder. While Appellant did
     not have to prove his innocence at the hearing on his motion to
     withdraw the guilty plea as Appellant’s counsel pointed out and
     this court acknowledges, his claim of innocence is simply not
     plausible.

        It is also apparent from Appellant’s May 2017 letters that the
     reason behind the request to withdraw was Appellant’s fear of the
     possible sentence that the court could impose and his inability to
     challenge that sentence after pleading guilty. However, his
     counsel made it clear on the record at Appellant’s plea colloquy
     that Appellant understood the possible sentences he could receive
     as a result of entering the guilty plea. . . . These do not constitute
     valid reasons for allowing withdrawal of a knowing, intelligent and
     voluntarily entered plea.

                                     -7-
J-S21020-19



        The court also questioned Appellant during his guilty plea
     colloquy about the time Appellant had to consider his options, that
     he had the opportunity to discuss his decision with friends and
     family and enough time to ask questions of and discuss the
     decision with his Counsel. Appellant replied that he had indeed
     discussed his option with others and had enough time to ask
     questions of Counsel. Thus, Appellant’s sworn testimony during
     his April 2017 guilty plea colloquy contradicts the words in his May
     2017 letters.

        Lastly, this court considered the prejudice to the prosecution
     should Appellant’s request to withdraw his guilty plea be granted
     and determined that it would be substantial. As explained by ADA
     Heron, the majority of the Commonwealth witnesses were
     cooperating witnesses whose cases had been left open while
     awaiting the trials of Appellant and co-conspirator Massenburg.
     Once Appellant had entered his plea, those witnesses went before
     Judge Carpenter for sentencing. After Judge Carpenter heard
     about their cooperation in the Massenburg trial, including their
     testimony, and the fact that Appellant had entered a guilty plea,
     he sentenced two of the main cooperating witnesses to time
     served. Assuming that these witnesses would even be willing to
     testify now, which is doubtful, the Commonwealth argued that
     their credibility would be diminished from the level that it was
     before their sentencing. In other words, if the request to withdraw
     were granted, the Commonwealth would not be in the same
     position pre-trial that it would have been had Appellant proceeded
     with trial on April 17, 2017, instead of entering a guilty plea.

         The Commonwealth also argued that convincing the witnesses
     to come back into court and testify, those cooperating as well as
     the resident witnesses who live in Norristown, would be more
     difficult because of the intimidation factor. Appellant’s argument
     that he was unaware of and disavowed the intimidation of
     witnesses that occurred during his co-conspirator’s trial misses
     the mark.       This court has documented cases of witness
     intimidation, including the case presided over by the undersigned
     in Appellant’s conviction by a jury in April of 2015.           See
     Commonwealth v. Ryan Stanford Lee, Montgomery County
     Docket No. CR-7659-2014, aff’d Commonwealth v. Lee No.
     3803 EDA 2015 (Pa. Super. Filed July 3, 2018) (unpublished
     memorandum). In that case, Appellant was convicted of shooting
     at an individual who testified before a Grand Jury. The inability to

                                    -8-
J-S21020-19


      secure witness testimony because of this             intimidation   is
      substantially prejudicial to the Commonwealth.

         Based on the totality of the circumstances in this case, a review
      of the entire record as well as the applicable law, including all of
      the factors this court is required to consider, the court determined
      that Appellant had failed to offer a “fair and just” reason to justify
      granting the request to withdraw his guilty plea. Further, the
      court determined that substantial prejudice would inure to the
      Commonwealth should Appellant’s request to withdraw his plea be
      granted.     Therefore, this court has properly exercised its
      discretion, and [this] issue merits no relief.

Trial Court Opinion, 11/7/18, at 20-23.

      Based on our review of the certified record, including the transcripts of

Appellant’s guilty plea colloquy and the hearing on Appellant’s request to

withdraw his plea, we conclude that the trial court did not abuse its discretion

in denying Appellant’s request to withdraw his plea. Appellant asserts two

arguments in support of his claim that the trial court erred in precluding him

from withdrawing his plea: (1) that he offered a plausible explanation of his

innocence, and (2) that he was under duress when he pled guilty because of

having insufficient time to weight his options. There is, however, no record

support for either argument.

      Appellant offered no evidence at the hearing on his motion to withdraw

his guilty plea to support his claim of innocence, and instead relied solely on

the letters he had mailed to the trial court. With regard to Appellant’s claim

that he made his guilty plea under duress, the transcript of his guilty plea

colloquy reveals that Appellant answered in the affirmative when the trial court

asked him if he had ample time and opportunity to discuss his decision to

                                      -9-
J-S21020-19


plead with family, friends, and Counsel. N.T., 4/17/17, at 20-21. As the trial

court accurately recognized, “[a] defendant is bound by the statements made

during the plea colloquy, and a defendant may not later offer reasons for

withdrawing the plea that contradict statements made when he pled.”

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012).

      Moreover, it is apparent from our reading of Appellant’s letters to the

trial court that Appellant sought the withdrawal of his guilty plea, in part,

because of his concern with the potential length of his sentence. See Pro Se

Correspondence, 5/18/17. This Court has repeatedly stated that the “desire

to avoid a more lengthy prison term is not grounds for withdrawing [a] plea.”

Commonwealth v. Baez, 169 A.3d 35, 41 (Pa. 2017).

      Based on these considerations, along with the issues outlined by the

trial court regarding the Commonwealth’s witnesses, we conclude that

Appellant has failed to demonstrate that permitting withdrawal of his plea

would promote fairness and justice or that it would not substantially prejudice

the Commonwealth. See Carrasquillo, 115 A.3d at 1291-92.

      Finally, after conducting our own independent review of the record, we

have determined that there are no issues of merit and agree with Counsel’s

assessment that Appellant’s direct appeal is frivolous. We thus find this appeal

to be wholly frivolous and permit Counsel to withdraw.

      Petition to withdraw granted. Judgment of sentence affirmed.




                                     - 10 -
J-S21020-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/19




                          - 11 -
