J-A05001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                   v.

KEYANNA FLETCHER,

                         Appellant                  No. 3318 EDA 2013


        Appeal from the Judgment of Sentence of October 15, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0005475-2012


BEFORE: OLSON and OTT, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                              FILED MAY 09, 2016

     Appellant, Keyanna Fletcher, appeals from the judgment of sentence

entered on October 15, 2013 in the Court of Common Pleas of Philadelphia

County, as made final by the denial of a post-sentence motion. We affirm.

     This case arose from an after-school physical altercation that occurred

on April 16, 2012.      During the fight, Appellant punched the victim and

slashed her with a knife, causing severe lacerations to the victim’s face,

chest, back, and arms. At the time of the incident, Appellant was 17 years

of age and the complainant was 16 years old.

     On May 9, 2012, the Commonwealth filed an information charging

Appellant with criminal attempt – murder, aggravated assault, possession of

an instrument of crime (PIC), terroristic threats, simple assault, and




*Former Justice specially assigned to the Superior Court.
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recklessly endangering another person.1 Thereafter, on July 31, 2012, the

trial court granted a defense motion to quash the charges of criminal

attempt – murder and terroristic threats. On September 25, 2012, the trial

court denied a defense request to decertify the charges against Appellant to

juvenile court.

        On July 31, 2013, Appellant entered guilty pleas to the charges of

aggravated assault and PIC.              Subsequently, at the conclusion of a

sentencing hearing on October 15, 2013, the trial court ordered Appellant to

serve an aggregate term of four and one-half to nine years’ imprisonment.2

On October 22, 2013, Appellant filed a timely motion asking the court to

reconsider her sentence. The trial court denied that motion on November 5,

2013 and Appellant filed a timely notice of appeal on November 20, 2013.

Pursuant to Pa.R.A.P. 1925(b), the court directed Appellant to file a concise

statement of errors complained of on appeal. On January 31, 2014, court-

appointed direct appeal counsel3 filed a concise statement advising the trial

court    that   Appellant    enjoyed     only   limited   grounds   for   appeal   (i.e.

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1
  18 Pa.C.S.A. §§ 901(a) and 2502, 2702(a)(1), 907(a), 2706(a)(1),
2701(a)(1), and 2705, respectively.
2
 Specifically, the court ordered Appellant to serve four and one-half to nine
years for aggravated assault, together with a concurrent term of two and
one-half to five years for PIC. The remaining charges were nolle prossed.
3
  Court-appointed direct appeal counsel entered her appearance on
November 25, 2013.



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jurisdiction, validity of the plea, the legality of sentence, and the

effectiveness of counsel) in view of her guilty plea and that none of those

claims appeared meritorious. On November 24, 2014, the trial court issued

an opinion stating that Appellant was not entitled to relief in view of

Appellant’s concise statement.

       On January 12, 2015, court-appointed direct appeal counsel filed a

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

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981) and requested

leave to withdraw from representation. On March 18, 2015, newly-retained

appellate counsel entered his appearance in this matter and moved to strike

prior counsel’s Anders brief. This Court denied that motion and, on July 31,

2015, newly-retained appellate counsel filed an advocate’s brief raising the

issues set forth below.4
____________________________________________


4
  Court records establish that while Appellant elected to proceed before this
panel with the assistance of retained direct appeal counsel, the Anders brief
and application to withdraw filed by appointed appellate counsel remain
unresolved and pending before this Court. Where an application to withdraw
has been filed, we first review the request to withdraw before we address
the merits of an appeal. See Commonwealth v. Cartrette, 83 A.3d 1030,
1032 (Pa. Super. 2013) (en banc). In procedural terms, counsel seeking to
withdraw must: 1) petition the court for leave to withdraw stating that,
after making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy of the brief
to the defendant; and 3) advise the defendant that he or she has the right to
retain private counsel or raise additional arguments that the defendant
deems worthy of the court's attention. Id. (citation omitted).

Herein, counsel's petition to withdraw states that she reviewed the record
and concluded that the appeal is frivolous. Additionally, counsel notified
(Footnote Continued Next Page)


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        Did the trial court err in finding that the evidence was sufficient
        to show as a matter of law that [Appellant] was guilty of
        aggravated assault where [Appellant] did not agree to the
        recitation of the facts recited by the Commonwealth at the guilty
        plea hearing?

        Was the guilty plea of [Appellant] knowingly, intelligently, or
        voluntarily made[?]

Appellant’s Brief at 3 (complete capitalization omitted).

        Appellant’s first claim alleges that the Commonwealth failed to

demonstrate the mens rea necessary to sustain a conviction for aggravated

assault.5    Citing various portions of the transcript from her plea hearing,

Appellant points to statements by trial counsel which assert that while she

agreed with the Commonwealth’s description of the April 2012 assault, she
                       _______________________
(Footnote Continued)

Appellant that she was seeking permission to withdraw and furnished
Appellant with copies of the petition to withdraw and Anders brief, and
advised Appellant of her right to retain new counsel or proceed pro se to
raise any points she believes worthy of this Court's attention. Accordingly,
appointed direct appeal counsel satisfied the procedural requirements of
Anders.

Having concluded that counsel complied with the procedural mandates of
Anders, we ordinarily would determine whether counsel's Anders brief
meets substantive requirements. In this case, however, Appellant elected to
retain new direct appeal counsel who, in turn, filed an advocate’s brief and
presented oral argument to the Court. In light of these circumstances, we
need not assess whether appointed counsel complied with the substantive
components of Anders. Moreover, as we conclude that the issues presented
in this appeal are so wholly devoid of merit that they must be deemed
frivolous, see infra, we grant the petition to withdraw filed by appointed
direct appeal counsel.
5
    Appellant does not challenge her conviction for PIC.




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disputed    certain    background      facts   that   lead   up   to   the   altercation.

Appellant’s Brief at 13-15.         Appellant also refers to statements by trial

counsel at her sentencing hearing that, in Appellant’s view, raised doubts as

to whether there was any agreement that Appellant assaulted the victim.

Id. at 15-16. This claim fails.

       As a preliminary matter, Appellant waived any challenge to the

sufficiency of the evidence offered to support her conviction for aggravated

assault. Here, Appellant entered a guilty plea to aggravated assault before

the trial court. “The entry of a guilty plea constitutes a waiver of all defects

and defenses except lack of jurisdiction, invalidity of the plea, and illegality

of the sentence.” Commonwealth v. Main, 6 A.3d 1026, 1028 (Pa. Super.

2010), quoting Commonwealth v. Tareila, 895 A.2d 1266, 1267 (Pa.

Super. 2006). Appellant is not entitled to appellate review of her sufficiency

challenge.6

       Even if we were to reach the merits of Appellant’s sufficiency

challenge, we would conclude that no relief is due.               At her plea hearing,

Appellant disagreed only with certain background facts, not facts pertaining

to her altercation with the victim that established the elements of the
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6
  Appellant’s failure to include her sufficiency claim in her court-ordered
concise statement would generally constitute alternative grounds for finding
waiver. See Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005). Here,
however, appointed counsel filed a statement of intent to file an Anders
brief pursuant to Pa.R.A.P. 1925(c)(4). Thus, we shall forgo a finding of
waiver on this ground.



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aggravated assault conviction. In an exchange with the trial court, Appellant

specifically agreed that she started the fight and that she slashed the

complainant.       N.T., 7/31/13, at 11.    These admissions establish beyond a

reasonable doubt that Appellant intended to inflict serious bodily injury upon

the victim.

          In her second claim, Appellant objects to the validity of her guilty plea.

To advance this challenge, Appellant renews her claim that the factual basis

for her plea was insufficient and reiterates her contention that she disputed

the Commonwealth’s factual recitation at both the guilty plea and sentencing

hearings. See Appellant’s Brief at 11-12 and 16. Appellant further claims

that she was not advised on the record of her right to a jury trial, the

presumption of her innocence, and the permissible range of fines and

punishment.        Id. at 12.    Finally, Appellant maintains that she does not

believe that she committed an aggravated assault.              Appellant therefore

contends that her plea colloquy was inadequate. This claim, too, merits no

relief.

          Appellant waived review of her challenge to the validity of her guilty

plea.      The record here demonstrates that Appellant did not challenge the

validity of her guilty plea before the trial court. Appellant did not move to

withdraw her guilty plea either before or after the trial court imposed her

sentence.      Under Pa.R.A.P. 302(a), “[i]ssues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”            Pa.R.A.P.

302(a). Because Appellant did not challenge her guilty plea before the trial

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court, her claim is waived.7        Commonwealth v. D’Collanfield, 805 A.2d

1244, 1246 (Pa. Super. 2002) (appellant failed to preserve challenge to

guilty plea where he failed to raise claim at sentencing hearing or through

post-sentence motion).

       Even if we reached the merits of Appellant’s challenge to the validity of

her plea, she would not be entitled to relief.      We previously applied the

following well-established standard in assessing a post-sentence motion to

withdraw a guilty plea:


       Our law is clear that, to be valid, a guilty plea must be
       knowingly, voluntarily and intelligently entered. There is no
       absolute right to withdraw a guilty plea[.] To withdraw a plea
       after sentencing, a defendant must make a showing of prejudice
       amounting to “manifest injustice.” A plea rises to the level of
       manifest injustice when it was entered into involuntarily,
       unknowingly, or unintelligently. A defendant's disappointment in
       the sentence imposed does not constitute “manifest injustice.”

       Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super.
       2003) (citations and quotation marks omitted).

       In order to ensure a voluntary, knowing, and intelligent plea,
       trial courts are required to ask the following questions in the
       guilty plea colloquy:

       1) Does the defendant understand the nature of the charges to
       which he or she is pleading guilty or nolo contendere?

       2) Is there a factual basis for the plea?

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7
  Again, Appellant’s failure to include her second issue in her concise
statement is potential grounds for finding waiver. However, given appointed
counsel’s filing of a Rule 1925(c)(4) statement, we shall refrain from finding
waiver on this basis.



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      3) Does the defendant understand that he or she has the right to
      a trial by jury?

      4) Does the defendant understand that he or she is presumed
      innocent until found guilty?

      5) Is the defendant aware of the permissible ranges of sentences
      and/or fines for the offenses charged?

      6) Is the defendant aware that the judge is not bound by the
      terms of any plea agreement tendered unless the judge accepts
      such agreement?

      Id. at 522–23; see also Pa.R.Crim.P. 590. “The guilty plea
      colloquy must affirmatively demonstrate that the defendant
      understood what the plea connoted and its consequences.”
      Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa. Super.
      1998). “Once a defendant 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.”
      Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super.
      1999) (citation and internal brackets omitted). “In determining
      whether a guilty plea was entered knowingly and voluntarily, ...
      a court is free to consider the totality of the circumstances
      surrounding the plea.” Commonwealth v. Flanagan, 578 Pa.
      587, 854 A.2d 489, 513 (2004) (citation and internal quotation
      marks omitted). Furthermore, nothing in the rule precludes the
      supplementation of the oral colloquy by a written colloquy that is
      read, completed, and signed by the defendant and made a part
      of the plea proceedings. Commonwealth v. Morrison, 878
      A.2d 102, 108 (Pa. Super. 2005).

Commonwealth v. Bedell, 954 A.2d 1209, 1212-1213 (Pa. Super. 2008).

      The record demonstrates that Appellant made a knowing, voluntary,

and intelligent decision to plead guilty.     At her plea hearing, Appellant

completed a written guilty plea colloquy, with the assistance of counsel,

which the trial court incorporated into an on-the-record oral colloquy. The

written colloquy specifically advised Appellant of her right to a jury trial, the

presumption of her innocence, and the maximum statutory penalties and


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fines for the offenses to which she entered her plea. In addition, the oral

colloquy    confirmed      that   Appellant     understood     the   rights   she    was

surrendering and established that she was knowingly pleading guilty of her

own free will.          Appellant’s claim that she disputed portions of the

Commonwealth’s recitation of the facts is also unpersuasive; as we stated

above, Appellant disputed only certain background facts, not facts used to

establish the elements of her aggravated assault conviction.              Lastly, since

Appellant admitted she was the aggressor in the altercation with the victim,

and since she admitted lacerating the victim’s face and body by slashing the

complainant with a knife, the record refutes Appellant’s claim that she did

not   believe    that    she   committed       aggravated    assault.    Under      these

circumstances, we are satisfied that Appellant’s guilty plea was knowing,

voluntary, and intelligent.8 Accordingly, Appellant is not entitled to relief.


____________________________________________


8
  Upon review of the transcript of Appellant’s plea hearing, we note that the
trial court advised Appellant that it would not allow her to withdraw her
guilty plea. N.T., 7/31/13, at 14. This statement is incorrect. A request to
withdraw a guilty plea made before the trial court imposes a sentence should
be granted where the defendant identifies a fair and just reason. See
Pa.R.Crim.P. 591 cmt. Conversely, a post-sentence motion to withdraw a
plea should be granted where the defendant demonstrates a manifest
injustice. Bedell, supra. Read in context, however, the trial court’s
statement appears to have been intended to impress upon Appellant the
serious nature of the proceedings. Appellant was represented by counsel at
both the plea and sentencing hearings and counsel advised Appellant of her
right to seek withdrawal of her plea after the court imposed its sentence.
Appellant does not raise the trial court’s errant statement in this appeal and,
because the remark had no discernible impact upon the validity of
(Footnote Continued Next Page)


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     Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2016




                       _______________________
(Footnote Continued)

Appellant’s plea, we see no reason to grant relief on the basis of the trial
court’s isolated comment.



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