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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


 JOSHUA WILLIAMS,

                    Appellant.                     :   No. 761 EDA 2018
          Appeal from the Judgment of Sentence, October 5, 2015,
            in the Court of Common Pleas of Philadelphia County,
           Criminal Division at No(s): CP-51-CR-0008410-2014.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.:                                              FILED JULY 23, 2019
      Joshua Williams appeals, nunc pro tunc, from a judgment of sentence,

after pleading guilty to murder of the third degree and possession of an
instrument of crime.' He raises four issues: (1) the trial court "repeatedly
described the murder charge as a first -degree -murder charge," (2) it failed to

ask "follow-up questioning   .   .   .   to explore whether   .   .   .   mental illness impacted

[his] state of mind when formulating the decision to enter into a plea
agreement," (3) it relied upon stipulated facts that were insufficient to support

a conviction for murder of the third degree, and (4) his previous attorneys
were ineffective. Williams' Brief at 6-7.2


1- See 18 Pa.C.S.A. §§ 2052(c), 907.

2 Also, Williams moved this Court to remand his case, because his written plea
colloquy is not of record. He cites no law to support his request. Under
Pa.R.A.P. 1926 the appellant - i.e., Williams - has the burden of perfecting
the appellate record. We deny his motion for remand.
J -S30027-19



      The Commonwealth asserts Williams waived his first three claims. See

Commonwealth's Brief at 8 (quoting Commonwealth v. Lincoln, 72 A.3d
606, 609-610 (Pa. Super. 2013) ("a defendant wishing to challenge the
voluntariness of a guilty plea on direct appeal must either object during the
plea colloquy or file a motion to withdraw the plea within ten days of
sentencing.    Failure to employ either measure results in wavier.") Williams
disagrees, because (1) "[a]rticulating the wrong factual source of [the undue

influence] (i.e., trial counsel versus the trial court) does not at all waive the
underlying issue" and (2) "[m]ental competency to participate in a proceeding

is not waivable." Williams' Reply Brief at 3-4.

      Williams cites no law for his first proposition, and it       is   incorrect.

Generally speaking, issues not raised in the trial court may not be advanced

for the first time on appeal. See Pa.R.A.P. 302(a). Thus, we dismiss Williams'

first and third issues as waived, because he is raising them for the first time

on appeal.

      As to his second proposition, Williams is correct. A defendant's claim of

mental incompetency is not waivable. See Commonwealth v. Higgins, 424
A.2d 1222, 1225 (Pa. 1980) (holding mental competency claim shielded from

judicial waiver principles by "relaxed waiver" rule governing direct appellate
review of such claims).3



3 Williams cites Judge Bowes' concurring memorandum in Commonwealth
v. DiPrimeo, 2018 WL 5791977. There, she disagreed with the panel


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      On the merits of his second appellate issue, Williams does not
acknowledge that our standard of review for a mental capacity claim is abuse

of discretion. See Williams' Brief at 4.     "The determination of competency

[to plead guilty] is a matter for the sound discretion of the trial court and will

not be disturbed absent a clear abuse of that discretion." Commonwealth
v. Frey, 904 A.2d 866, 872 (Pa. 2006). Instead, Williams attempts to litigate
his defense on appeal as if this were a trial de novo. He presents, at great
length, his version of the underlying facts and submits his medical records as

an appendix to his brief. See id. at 26-42, Tabs E -G. We may not review this

appended evidence, because those documents are dehors the record. See,
e.g., Commonwealth v. Atkinson, 528 A.2d 210, 217 n.1 (Pa. Super.
1987). Due to Williams' failure to argue, must less convince us, that the trial
court abused its discretion, we must dismiss his second issue as affording him

no appellate relief.

      Finally, Williams' fourth issue asserts ineffectiveness of counsel. Such
issues must await collateral attack via the PCRA. See, e.g., Commonwealth

v. Reid, 117 A.3d 777, 787 (Pa. Super. 2015) (citation omitted). We dismiss

this issue without prejudice to renew it in a PCRA petition.

      Motion to remand denied.


majority that a defendant's claim of an incompetent guilty plea was waived,
because he could raise a theory of mental infirmity for the first time on appeal.
Judge Bowes' analysis persuades us that a theory of mental incompetence to
enter a guilty plea is not subject to wavier. Because DiPrimeo was not an
Opinion, the panel majority's conclusion of waiver is not binding upon us. See
Superior Court I.O.P. 65.37
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     Judgment of sentence affirmed.
Judgment Entered.




Jseph D. Seletyn,
Prothonotary


Date: 7/23/19




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