J-S27025-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HYKEIM DORSEY-GRIFFIN                      :
                                               :
                       Appellant               :   No. 1871 EDA 2018

          Appeal from the Judgment of Sentence Entered June 7, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0002417-2017


BEFORE:      SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.:                               FILED JULY 7, 2020

        Hykeim Dorsey-Griffin (Appellant) appeals from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas following

his negotiated guilty plea to third-degree murder and persons not to possess

firearms.1 Appellant avers he did not enter his guilty plea voluntarily. We

affirm.

        The trial court summarized the Commonwealth’s presentation of the

facts and procedural history as follows. On October 12, 2016, around 7:30

p.m., Saleem Brown (Decedent) and Nyseem Dorsey-Griffin (Appellant’s

Brother) engaged in a verbal altercation regarding the sale of narcotics near


____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S §§ 2502(c), 6105(a)(1).
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the corner of Bristol and Franklin Streets in the Hunting Park section of

Philadelphia.   N.T. Guilty Plea, 5/14/18, at 27-28.     The altercation, which

included shoving, was captured on video. Appellant and two other men, who

subsequently gave statements to Philadelphia Police Detectives, observed the

altercation. The argument ceased and all individuals left the scene. Id. at

28-29.

      At approximately 9:40 p.m., video surveillance showed Appellant and

Joel Medina approach the area of 4248 North Franklin Street, where Decedent

and three individuals were sitting on a front step. N.T., Guilty Plea, at 29-30.

They engaged in “pleasant conversation” and there was no argument or

fighting. Id. at 30. After a few minutes, Appellant turned to Decedent “and

said something to the effect of, ‘This is for my brother,’ or, ‘You can’t eff with

— F-U-C-K —with my brother.’” Id. Appellant, who was within three feet of

Decedent, revealed a firearm and fired 12 shots at Decedent. Decedent was

hit 11 times, including in the head. Id. at 31. Appellant and Medina then

walked away.

      Medina, who initially approached the group with Appellant, as well as

one of the men on the front steps gave statements to Philadelphia Police

detectives and identified Appellant as the shooter. N.T., Guilty Plea, at 35-

36. After the shooting, Medina asked Appellant why he shot Decedent, to

which Appellant replied, “fuck him.”     Id. at 36.    The Philadelphia Medical

Examiner’s Officer determined Decedent died from multiple gunshot wounds


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and the manner of death was homicide.                 The Philadelphia Firearms

Identification Unit examined ballistic evidence recovered from the crime scene

and determined that all twelve fired cartridge casings, as well as projectiles

and fragments taken from Decedent’s body, were fired from the same gun.

Id. at 32-33.

        On January 8, 2017 Appellant was charged with murder and related

offenses. On May 14, 2018, Appellant entered into a negotiated guilty plea to

third-degree murder and persons not to possess firearms.2 During this guilty

plea hearing Appellant and the trial court had the following exchange:

        The Court: . . . Do you want to plead guilty?

        [Appellant:] It doesn’t even matter.

        The Court: No. It matters. It really does. If you don’t want to
        plead guilty, I’m not going to take your guilty plea obviously. All
        right?

        [Appellant]: Yeah.

        The Court: What is the “yeah” about?

        [Appellant]: It’s a yeah.

        The Court: To which one?

        [Appellant]: Pleading guilty.

        The Court: Which question? Do you want to plead guilty?

        [Appellant]: Yeah.

        The Court: Okay. Because you can go on with your jury trial.
____________________________________________


2   All other charges were nolle prossed as a result of the negotiated guilty plea.

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           Do you understand that?

      [Appellant]: Yeah.

                                   *   *     *

      The Court: The agreed to sentence in this case is a total of 25 to
      50 years. And the way it’s going to be split up is you will receive
      20 to 40 years on the third-degree murder conviction, then five to
      ten years to run consecutively on the Violation of the Uniform
      Firearms Act conviction. So “consecutively” means that the five
      starts after the 20 ends, so that brings it to a total of 25 to 50
      years.

           Do you understand that?

      [Appellant]: Yeah.

N.T., Guilty Plea, at 21-22, 26.

      On June 7, 2018, the trial court conducted a sentencing hearing. At the

beginning of the hearing, Appellant stated he “took the [plea] deal under

duress.”   N.T. Sentencing, 6/7/18, at 5.    When the court asked what the

duress was, Appellant stated, “It’s a couple different things.” Id. at 6. The

trial court advised Appellant, “You don’t have to plead guilty under duress,”

and that he could file a motion to withdraw his plea, which the court would

consider against any response by the Commonwealth.          Id. at 6-7.     The

following exchange occurred:

      The Court: Okay. I mean, do you want to file a petition to
      withdraw your guilty plea?

      [Appellant:] We can move forward.

      The Court: With your sentencing?


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       [Appellant:] Uh-huh. Yes

       The Court: Are you sure about that? Because you really can have
       a jury trial. And it’s not a trick. This is not a trick question.

       [Appellant:] No. I know. I understand.

       The Court: You can have a waiver trial, if they agree. That means
       I hear the case. You can have a jury trial. Your right is actually
       to have a jury trial. You can just say, No, Judge. I want my jury
       trial. And I don’t have a problem with that.

       [Appellant:] We can move forward with sentencing

Id. at 8-9 (emphasis added).

       The trial court then imposed the negotiated sentence of 20 to 40 years’

incarceration for third-degree murder, and a consecutive 5 to 10 years’

incarceration for the firearms charge, for an aggregate term of 25 to 50 years’

incarceration. Appellant did not file any post-sentence motions.

       On June 15, 2018, Appellant filed a pro se notice of appeal followed by

a counseled notice of appeal on June 29, 2018.3 Appellant’s counsel, George

Yacoubian, Esquire (Trial Counsel), then filed, in the trial court, a motion to

withdraw from representation on July 12, 2018. The trial court informed Trial


____________________________________________


3 Although Appellant was represented by counsel, the court clerk properly
docketed his pro se notice of appeal. See Pa.R.Crim.P. 576(A)(4) (if
represented criminal defendant submits for filing a notice of appeal that has
not been signed by his attorney, the clerk of courts shall accept it for filing,
and a copy of the time-stamped document shall be forwarded to defendant’s
attorney and Commonwealth within 10 days); Commonwealth v. Wooden,
215 A.3d 997, 1000 (Pa. Super. 2019) (although defendant’s attorney
remained as counsel of record, it was proper for trial court clerk to docket
defendant’s pro se notice of appeal).


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Counsel that it no longer had jurisdiction over the matter and he must contact

this Court.   The trial court also notified counsel that it intended to file a

Pa.R.A.P. 1925(b) order, which it subsequently did on July 13, 2018, with a

deadline of August 13, 2018.

      Trial Counsel filed a motion, in this Court, to withdraw as counsel on

August 18, 2018. This Court denied that motion on September 10th without

prejudice to allow him to file a petition to withdraw and brief in compliance

with Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).

      On October 3, 2018, the trial court filed an opinion, stating Trial Counsel

had failed to file any Pa.R.A.P. 1925(b) statement, and thus Appellant’s

appellate issues should be deemed waived pursuant to Commonwealth v.

Lord, 719 A.2d 306 (Pa. 1998).

      On November 7, 2018, Trial Counsel filed another petition, in this Court,

to withdraw from representation, which this Court granted on December 10th.

That same day, this Court remanded the case for the appointment of new

counsel. Present counsel, James Berardinelli, Esquire, was appointed, and on

February 21, 2019, he filed a Rule 1925(b) statement on Appellant’s behalf.

On April 15, 2019, upon motion by Appellant, this Court again remanded this

case, directing the trial court to file a supplemental opinion. The trial court

has complied.

      Appellant presents one issue for our review.


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      Did the lower court err in accepting [Appellant’s] guilty plea in
      light of his obvious reluctance to do so?

Appellant’s Brief at 3. Appellant avers he entered into his negotiated guilty

plea involuntarily and unknowingly. Appellant claims the following exchange,

during his plea colloquy, demonstrates his equivocation about entering into

the guilty plea:

      [Appellant:] Oh, I got a choice now?

      The Court: You always have a choice. I mean, are you satisfied
      with [Trial Counsel’s] advice regarding your guilty plea?

      [Appellant:] No. But it really don’t matter.

      The Court: Well, you don’t have to plead guilty. You can go to
      trial. You always have a choice about trial.

      [Appellant:] I asked you for a lawyer and that didn’t help. It
      doesn’t matter. Let’s just get it over with.

      The Court: Yeah. I know. You asked me for a lawyer. We talked
      about it —

      [Appellant:] That’s all.

      The Court: — right? Last time. And I told you, no. You’ve got to
      go along with this lawyer and work with him and then you didn’t.
      Remember that?

          Do you want to plead guilty?

      [Appellant:] It doesn’t even matter.

Appellant’s Brief at 6 citing N.T., Guilty Plea, at 21-22. Appellant contends

that because his plea was not voluntary, the trial court erred by accepting it

and he must be awarded a new trial. We conclude this issue is waived.




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      Pennsylvania Rule of Appellate Procedure 302(a) states, “Issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.”   Pa.R.A.P. 302(a).      In order to preserve an issue regarding the

voluntariness of a guilty plea, a defendant must either “object[ ] at the

sentence colloquy or otherwise raise[ ] the issue at the sentencing hearing or

through a post-sentence motion.”       Commonwealth v. Monjaras-Amaya,

163 A.3d 466, 468-69 (Pa. Super. 2017).

      Here, at the sentencing hearing, Appellant made a bald claim that he

pleaded guilty under duress.         See N.T., Sentencing, at 6 (Appellant

responding, “It’s a couple different things,” when trial court asked, “So what

was the duress that caused you to take the deal[?]”). When the trial court

advised him he could file a motion to withdraw his plea, however, Appellant

stated, “We can move forward” with sentencing. Id. at 8. Appellant did not

preserve his issue because he did not object at any time during the sentencing

hearing nor did he file a post-sentence motion. See Monjaras-Amaya, 163

A.3d at 468-69. Appellant’s issue cannot be raised for the first time on appeal,

thus his issue is waived. See Pa.R.A.P. 302(a).

      Moreover, even if Appellant had properly preserved his issue for appeal,

he would be entitled no relief.

      This Court has stated:

      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, and the decision as to whether to allow a
      defendant to do so is a matter within the sound discretion of the

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      trial court. 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.” . . .

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

omitted). Additionally, “the desire of an accused to benefit from a plea bargain

is a strong indicator of the voluntariness of his plea.” Id. at 524.

          In order for a guilty plea to be constitutionally valid, the
          guilty plea colloquy must affirmatively show that the
          defendant understood what the plea connoted and its
          consequences. This determination is to be made by
          examining the totality of the circumstances surrounding
          the entry of the plea. [A] plea of guilty will not be
          deemed invalid if the circumstances surrounding the
          entry of the plea disclose that the defendant had a full
          understanding of the nature and consequences of his
          plea and that he knowingly and voluntarily decided to
          enter the plea.

      “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.” “[W]here the record clearly demonstrates that a
      guilty plea colloquy was conducted, during which it became
      evident that the defendant understood the nature of the charges
      against him, the voluntariness of the plea is established.” Thus,

           [a] court accepting a defendant’s guilty plea is required
           to conduct an on-the-record inquiry during the plea
           colloquy. The colloquy must inquire into the following
           areas:

           (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?

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


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

            (5) Is the defendant aware of the permissible range 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?

Commonwealth v. Rush, 909 A.2d 805, 808-09 (Pa. Super. 2006) (citations

omitted).

      Here, during the guilty plea hearing, the trial court thoroughly

questioned whether, despite his alleged “duress,” Appellant wished to plead

guilty, to which he responded, “Yeah.” N.T., Guilty Plea, at 22. The trial court

also advised Appellant of the proposed sentencing terms of his plea deal, and

Appellant responded that he understood his sentence. Id. at 26. Further,

Appellant signed a written guilty plea colloquy form addressing the six points

described in Rush. See Rush, 909 A.2d at 808-09; see also Written Guilty

Plea Colloquy, 5/14/18, at 1-2.

      During the sentencing hearing, the trial court again inquired of Appellant

whether he wished to petition to withdraw his guilty plea.            Appellant

responded, “No.    I know.   I understand.”    N.T., Sentencing, at 9.    Thus,

Appellant entered into his negotiated guilty plea voluntarily. Appellant has

neither provided evidence nor made a showing of manifest injustice.        See

Pollard, 832 A.2d at 522.

      The trial court further reasoned:


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      [Appellant] also received the benefit of the bargain, in that, in
      exchange for pleading guilty to third-degree murder, the
      Commonwealth did not charge [Appellant] with first-degree
      murder and pursue a life-sentence for [Appellant]. Evidence was
      presented by the Commonwealth which indicated [Decedent] and
      [Appellant’s] younger brother got into a verbal altercation over
      drug territory. Approximately two hours after the argument
      ended, [Appellant] approached the area where [Decedent] was
      sitting, yelled, “this is for my brother,” drew a 9-millimeter
      semiautomatic handgun and began firing. [Appellant] fired a total
      of [12] times, striking [Decedent] 11 times. The totality of the
      evidence strongly corroborates the specific intent to kill needed to
      prove first-degree murder. [Appellant] plead guilty to third-
      degree murder and removed himself from the very real possibility
      of a life sentence.

Supplemental Trial Ct. Op., 5/13/19, at 8-9; see also Pollard 832 A.2d at

524. Thus, Appellant would not be entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/07/2020




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