J-A30019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MELVIN REED

                            Appellant                  No. 2625 EDA 2013


               Appeal from the Judgment of Sentence July 8, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010275-2011


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                          FILED DECEMBER 31, 2014

        Appellant, Melvin Reed, appeals from the July 8, 2013 aggregate

judgment of sentence of 25 to 50 years’ imprisonment following his

negotiated guilty plea to third-degree murder, firearms not to be carried

without a license, and possession of an instrument of crime (PIC).1         After

careful review, we affirm.

        The trial court summarized the relevant facts of this case as follows.

                    The incident took place on April 18th of 2011
              at approximately 6:40 p.m. at the location of 6600
              North Gratz Street in the City and County of
              Philadelphia.   On that day, the decedent, Alfred
              Williams, Junior, was 22 years old. He was dropped
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(c), 6106, and 907, respectively.
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          off at that location by his boss whom he had worked
          for that day. He was unarmed and went into the
          convenience store at that location. There is video
          surveillance of that convenience store, that identifies
          [Appellant] and the victim being at that location at
          the same time and also surveillance footage of the
          outside of the convenience store that identifies
          [Appellant] at that location at the time of the
          murder.

                There are three (3) eyewitnesses that identify
          [Appellant] by description and clothing, height[,]
          and[] weight. They identify him as wearing a black
          hoodie with black pants with red stripes down the
          side. Each would testify that they witnessed the
          murder.

                Shortly before the murder, they observed the
          decedent, Mr. Williams, speaking to a number of
          Jehovah’s    Witnesses.       As   he    ended    that
          conversation, he interacted with [Appellant]. There
          were some words exchanged and [Appellant] pulled
          out a gun and shot him numerous times. All three
          (3) of those witnesses identified [Appellant] through
          photo arrays and also in the video surveillance.

               The Commonwealth would have presented Dr.
          Edwin Lieberman with the following findings:

                Mr. Williams[] suffered a gunshot wound to the
          back of the neck, a grazing gunshot wound to the
          back of the left trapezius, a perforating gunshot
          wound to the back of the left shoulder girdle, a
          penetrating gunshot wound to the anterior mid-neck
          with recovery of a bullet from T1 severed cord at C6-
          7 with recovery of a small[-]sized bullet jacket from
          TI, also a penetrating gunshot wound to the left
          lateral chest wall. His heart, lung and aorta were
          penetrated by the bullet. There was recovery of a
          small[-]sized jacketed bullet in the right armpit. All
          of these shots were fired from an indeterminate
          range. The cause of death was multiple gunshot
          wounds to the head, neck and chest. There were


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           five gunshot wounds in this particular case.     The
           manner of death was homicide.

                The decedent expired with the pamphlet from
           the Jehovah’s Witnesses in his hand.    He was
           pronounced dead on the scene.

                 [Appellant] was brought in on April 19, 2011 to
           Homicide. He decided at the time he did not wish to
           give a statement. He was released.

                 On May 12th of 2011, [Appellant] was arrested
           for an unrelated incident on that same block, and
           was taken to Homicide. At that time[,] he gave a
           statement admitting he shot the decedent.        He
           claimed that he was selling drugs to the decedent
           and the decedent pulled a gun on him. He wrestled
           the gun from him and shot him.

                  The Commonwealth would have presented
           physical evidence to the contrary to disprove
           [Appellant’s] statement.     A search warrant was
           executed on [Appellant’s] house where police
           recovered a black hoodie and black sweatpants with
           red stripes down the side. Although the surveillance
           video did not capture the shooting itself, the three
           (3) eyewitnesses knew [Appellant]. One of those
           witnesses would also testify that he received a phone
           call from [Appellant], wherein [Appellant] thought
           the decedent was the person that broke into his
           house while he was in juvenile custody and that he
           was going to roll on him or confront him in some
           way.

Trial Court Opinion, 5/14/14, at 2-3.   On July 8, 2013, Appellant entered

into a negotiated guilty plea.   He pled guilty to third-degree murder,

firearms not to be carried without a license, and PIC.      In return, the

Commonwealth agreed not to proceed against him on charges of first-degree

murder or second-degree murder. Immediately following the plea colloquy,


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the trial court sentenced him in accordance with the plea agreement to 20 to

40 years’ imprisonment for the third-degree murder conviction, two and

one-half to five years’ imprisonment for the firearms not to be carried

without    a   license   conviction,    and    two   and   one-half   to   five   years’

imprisonment for the PIC conviction.             The trial court specified that all

sentences were to run consecutively, for an aggregate of 25 to 50 years’

imprisonment.       On July 15, 2013, Appellant filed a pro se motion to

withdraw his guilty plea, which the trial court denied following a hearing on

September 6, 2013.2 Thereafter, on September 26, 2013, Appellant timely

filed the instant appeal.3

____________________________________________


2
  Trial counsel represented Appellant at the September 6, 2013 hearing. At
the conclusion of the hearing, trial counsel indicated, “Judge, I think for the
purposes of any possible appeals, [Appellant] just made an allegation of
ineffective assistance of [c]ounsel. So I would ask your Honor to appoint
[c]ounsel.” N.T., 9/6/13, at 5. The trial court agreed and appointed new
counsel to Appellant for purposes of this appeal.
3
   Appellant and the trial court have complied with Pa.R.A.P. 1925.
Additionally, we note that Appellant was represented by trial counsel when
he filed his pro se motion to withdraw the guilty plea.   If Appellant’s pro se
motion is a legal nullity, it cannot toll the appeal period for Pennsylvania
Rule of Criminal Procedure 720 or Pennsylvania Rule of Appellate Procedure
Rule 903 purposes. See Commonwealth v. Ellis, 626 A.2d 1137, 1138
(Pa. 1993) (concluding there is no right to hybrid representation where a
defendant represents himself while simultaneously represented by counsel);
Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super. 2007), appeal
denied, 960 A.2d 838 (Pa. 2008) (holding this Court may sua sponte raise
jurisdictional issues). Pennsylvania Rule of Criminal Procedure 576(A)(4)
requires the clerk of courts to accept a pro se submission from a represented
defendant for filing, time stamp it, create a docket entry, place it in the file,
and send a copy of the time-stamped document to counsel of record.
(Footnote Continued Next Page)


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J-A30019-14


      On appeal, Appellant raises the following issue for our review.

             I.        Were the [A]ppellant’s guilty pleas knowing[,]
                       intelligent[,] and voluntary?

Appellant’s Brief at 2.

      “When an appellant enters a guilty plea, [he] waives [his] right to

challenge on appeal all non-jurisdictional defects except the legality of [his]

sentence and the validity of [his] plea.” Commonwealth v. Pantalion, 957

A.2d 1267, 1271 (Pa. Super. 2008) (citation and internal quotation marks

omitted). The decision to grant a motion to withdraw a guilty plea lies in the

sound discretion of the trial court.         Commonwealth v. Muhammad, 794

A.2d 378, 382 (Pa. Super. 2002).                 After sentencing, a defendant can

withdraw his guilty plea only upon a “showing of prejudice on the order of

manifest injustice.” Id. at 383. “[A] manifest injustice occurs when a plea
                       _______________________
(Footnote Continued)

Pa.R.Crim.P. 576(A)(4). In this case, Rule 576(A)(4) was not complied with,
as there is no indication that a copy of the pro se motion was forwarded to
Appellant’s counsel. Nevertheless, the trial court scheduled a hearing on the
motion, Appellant’s counsel apparently received notice of the hearing, and
he represented Appellant at the hearing. At the hearing, the trial court
disposed of the motion on its merits and later prepared an opinion in support
of its decision. Under these circumstances, we conclude that the actions of
the trial court and Appellant’s trial counsel perfected the post-sentence
motion. See Commonwealth v. Rojas, 874 A.2d 638, 643 (Pa. Super.
2005) (rejecting the argument that counseled appellant’s pro se post-
sentence motions were a nullity and concluding said motions tolled the
appeal period under Rule 720); cf. Commonwealth v. Cooper, 27 A.3d
994, 1007 (Pa. 2011) (concluding pro se notice of appeal, filed before timely
counseled post-sentence motions, is not automatically a legal nullity, but a
premature appeal that was perfected upon the trial court’s disposition of
counseled post-sentence motions). Therefore, we will review the merits of
Appellant’s issue.



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J-A30019-14


is not tendered knowingly, intelligently, voluntarily, and understandingly.”

Commonwealth v. Gunter, 771 A.2d 767, 771 (Pa. 2001).

      These standards avoid allowing the defendant to use a plea to test the

severity   of   the   punishment,   withdrawing   it   when   the    sentence   is

unexpectedly harsh. Commonwealth v. Shaffer, 446 A.2d 591, 593 (Pa.

1982). Accordingly, disappointment in the length of the sentence imposed

after a guilty plea does not rise to the level of manifest injustice as long as

the plea is knowing, intelligent, and voluntary. Muhammad, supra at 383.

Following sentencing on a negotiated guilty plea, the defendant may,

however, withdraw his plea if the trial court imposes a sentence in excess of

the bargained-for sentence. Commonwealth v. Tann, 79 A.3d 1130, 1133

(Pa. Super. 2013), citing Commonwealth v. Wallace, 870 A.2d 838, 843

n.5 (Pa. 2005); Pa.R.Crim.P. 591(A).

      To determine whether Appellant’s guilty plea was knowing, intelligent,

and voluntary, we       must examine     the   totality of the      circumstances

surrounding the guilty plea, including the colloquy. “Our law presumes that

a defendant who enters a guilty plea was aware of what he was doing. He

bears the burden of proving otherwise.” Commonwealth v. Yeomans, 24

A.3d 1044, 1047 (Pa. Super. 2011) (citation omitted).

      Here, Appellant contends that the trial court erred in denying his post-

sentence motion to withdraw his negotiated guilty plea because it was not

knowing, intelligent, or voluntary, as he believed the sentencing court would


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J-A30019-14


mitigate the sentence below 20 to 40 years’ imprisonment. Appellant’s Brief

at 7. He also contends that he thought the sentences on the PIC and the

firearms not to be carried without a license offenses were to run concurrent

to each other and the murder offense, not consecutive.         Id.     The record

belies these assertions.

      After examining the certified record, we conclude that the trial court

imposed the exact agreed-upon sentence of 25 to 50 years’ imprisonment.

The written guilty plea colloquy provides, “[t]here is no plea bargain of any

kind, except that the District Attorney promised to: Recommend a sentence

of not more than 25 to 50 years…. Drop [] all remaining charges. … [I]f the

judge does not agree with the plea bargain or agreement, I can withdraw my

guilty plea ….” Written Guilty Plea Colloquy, 7/8/13, at 1. The trial court, in

the oral guilty plea colloquy, advised Appellant that in exchange for his guilty

plea to third-degree murder, the Commonwealth would not pursue the

charges of first-degree murder or second-degree murder. N.T., 7/8/13, at

21. The trial court explained the agreed terms of the negotiated guilty plea

in the following exchange.

                   THE COURT:         You are entering into a
            negotiated guilty plea. What that means is that the
            District Attorney and your attorney agreed as to
            what your sentence should be. I don’t have to go
            along with that agreement but if I don’t, you have
            the right to just go forward with the jury trial, do you
            understand that, or to withdraw your plea and go
            before another Judge, if I allowed that.

                  Do you understand that?

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J-A30019-14



               THE DEFENDANT: Yes.

                 THE COURT: The agreement in your case is
          that in exchange for your plea to murder of the third
          degree, you will receive a sentence of 20 to 40
          years[’] incarceration. On the charge of Violation of
          the Uniform Firearms Act, you will receive a sentence
          of 2-and-a-half to 5 years to run consecutively, that
          means that that starts after the 20 years is up and
          on the possession of an instrument of crime, 2-and-
          a-half to 5 years to run consecutively meaning that
          starts after the 2-and-a-half years on the gun charge
          is up, for a total sentence of 25 to 50 years.

               Do you understand that?

               THE DEFENDANT: Yes.

                THE COURT: Other than what I have just told
          you, did anyone promise you anything in order to get
          you to plead guilty, other than the 25 to 50?

                MR. SEAY[, Appellant’s counsel]:         The
          Commonwealth agreed for it to run concurrently with
          the sentence he is now serving.

                THE COURT: This is an agreement that this
          sentence is to run concurrently to the sentence you
          are serving, any sentence now serving.

                Did anyone promise you anything other than
          that, plus what I just told you?

               THE DEFENDANT: No.

                                      …

                THE COURT: Knowing everything now that I
          have just explained to you about how you have the
          right to have a trial and that you can pick a jury --
          we have a panel outside -- do you still want to plead
          guilty?


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J-A30019-14


                  THE DEFENDANT: Yes.

                 THE COURT: I find the entry of the plea
            knowing, intelligent and voluntary.

N.T., 7/8/13, at 22-24.

      Contrary to Appellant’s assertion, the parties agreed in the written

plea agreement to a sentence of not more than 25 to 50 years’

imprisonment, on the record Appellant acknowledged that this aggregate

sentence of 25 to 50 years’ imprisonment was a result of the sentences for

his three charges running consecutively, and he agreed to his three

sentences running consecutively. Moreover, there is no indication in the oral

guilty plea colloquy that the trial court would mitigate the sentence to less

than 20 to 40 years’ incarceration.        It is clear that Appellant and the

Commonwealth agreed that Appellant’s sentence would be 25 to 50 years’

imprisonment, which is the sentence the trial court imposed. Additionally, in

the oral guilty plea colloquy, the trial court explicitly explained that all three

of Appellant’s sentences in this case would run consecutively to each other

and concurrent to any other sentences Appellant was currently serving, and

Appellant   agreed   to   that sentence.      While   Appellant may      now   be

disappointed that he agreed to said sentence, it is clear that the plea was

knowing, intelligent, and voluntary and the sentence imposed was not in

excess of the bargained-for sentence.       See Muhammad, supra; Gunter,

supra; Tann, supra.




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J-A30019-14


      Based on the foregoing, we agree with the trial court’s finding that

Appellant entered into a valid negotiated guilty plea and has not made a

showing of manifest injustice. See Muhammad, supra. Accordingly, the

trial court’s July 8, 2013 judgment of sentence is affirmed.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2014




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