J-S29026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYRONE DAVIS                               :
                                               :
                       Appellant               :   No. 3285 EDA 2019

          Appeal from the Judgment of Sentence Entered May 23, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0005941-2015


BEFORE:      PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                           FILED AUGUST 4, 2020

        Tyrone Davis (Davis) appeals nunc pro tunc from the judgment of

sentence imposed by the Court of Common Pleas of Philadelphia County (trial

court) on May 23, 2017, following his nolo contendere plea to Aggravated

Assault, Violation of the Persons Not to Possess Section of the Uniform

Firearms Act (VUFA) and Possession of an Instrument of Crime (PIC).1

Counsel has filed an application to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We grant counsel’s application to withdraw and affirm

Davis’s judgment of sentence.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2702(a), 6105(a)(1) and 907(a), respectively.
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                                       I.

      We take the following pertinent facts and procedural history from our

independent review of the record.     On March 26, 2015, Davis entered the

house of Rosalyn Scott (Scott), his then-girlfriend and the mother of his three

children, without her permission. He woke Scott by holding a gun to her head

and struck her in the head with the gun multiple times while she was holding

their baby. Davis then fled from the house and went to his workplace. Despite

Davis’s warning not to do so, Scott called the police.     She gave the police

Davis’s name and identified what he was wearing and the backpack he was

carrying. She also advised that she believed Davis had gone to his workplace,

a car stereo store, and gave the police the address.

      The police went to the location provided by Scott and found that the

light was on inside the locked store. When the police knocked at the door,

Davis voluntarily allowed them inside. They patted him down for weapons,

finding a bullet in his pocket, and, upon performing a search for officer safety,

the officers saw a gun on the floor of the bathroom and a backpack matching

Scott’s description. The gun was loaded and operable and the bag contained

42 bullets.

      On March 27, 2015, Davis was arrested for Aggravated Assault and

related charges.   While represented by appointed trial counsel, Frederick

Lowenberg, Esquire, Davis filed multiple pro se motions, including a pretrial

motion on June 25, 2015, seeking to quash the return of transcript and original


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papers, a January 25, 2016 motion for discovery and a September 6, 2016

motion challenging the validity of his arrest and search. The trial court did

not respond to any of these pro se motions.

       On January 30, 2017, Davis entered an open nolo contendere plea to

Aggravated Assault, VUFA and PIC, and an extensive oral colloquy was

conducted. The Commonwealth and defense counsel agreed that Davis was

not authorized to have a firearm because of a previous felony conviction for

rape. On May 23, 2017, the court sentenced Davis to an aggregate term of

incarceration of not less than six and one-half nor more than eighteen years.

Davis did not file a direct appeal.

       On March 22, 2018, Davis filed a timely pro se petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, in which he

maintained that his stop, seizure and arrest were unconstitutional and that

plea counsel was ineffective. Appointed counsel filed a Turner/Finley2 “no

merit” letter and the court provided Davis with Rule 907 Notice of its Intent

to Dismiss the petition without a hearing. See Pa.R.Crim.P. 907(1). On July

8, 2018, after receiving Davis’s response to the Notice, the court formally

dismissed the petition. Davis appealed to this Court, raising ten issues for our

review.    However, the Court addressed only his ninth issue, “Whether the



____________________________________________


2 Commonwealth v. Turner, 544 A.2d 927 (Pa.                       1988),    and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).


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[trial] court erred by preventing [Davis] from timely filing his direct appeal

motion[?]” (Commonwealth v. Davis, 2019 WL 3458780, at *2 (Pa. Super.

filed July 31, 2019) (unpublished memorandum) (record citation omitted)).

However, due to the insufficiently developed record, this Court was unable to

review the question and we remanded for the PCRA court to appoint new

counsel and conduct proceedings to consider whether Davis was entitled to

file a direct appeal nunc pro tunc. (See id. at *3).

      On remand, appointed counsel filed a PCRA petition on Davis’s behalf on

September 20, 2019. The court granted the petition and reinstated Davis’s

direct appeal rights. On November 20, 2019, Davis filed a counseled nunc pro

tunc notice of appeal to his May 23, 2017 Judgment of Sentence. Counsel

filed a Rule 1925(c)(4) Statement of Intent to file an Anders Brief on appeal.

Appointed counsel has filed an Anders brief and application to withdraw in

this Court.

                                     II.

                                      A.

      Before reaching Davis’s issue, we must consider counsel’s request to

withdraw. See Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009). It is well-settled that:

      Court-appointed counsel who seek to withdraw from representing
      an appellant on direct appeal on the basis that the appeal is
      frivolous must:




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            (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) file a brief referring to anything that arguably might
      support the appeal but which does not resemble a “no-merit”
      letter or amicus curiae brief; and

            (3) furnish a copy of the brief to the defendant and advise
      the defendant of his or her right to retain new counsel or raise any
      additional points that he or she deems worthy of the court’s
      attention.

Id. (citation omitted). Further, our Supreme Court ruled in Santiago, supra,

that Anders briefs must contain “a discussion of counsel’s reasons for

believing that the client’s appeal is frivolous[.]” Santiago, supra at 360.

      Counsel’s Anders brief and application to withdraw substantially comply

with the applicable technical requirements and reveal that he has made “a

conscientious examination of the record [and] determined that the appeal

would be frivolous[.]” Lilley, supra at 997 (citation omitted). Additionally,

the record establishes that counsel served Davis with a copy of the Anders

brief and application to withdraw and a letter of notice, which advised him of

his right either to retain new counsel or to proceed pro se and raise additional

issues to this Court. See id.; (see also Application to Withdraw as Counsel,

1/20/20, Exhibit A). Furthermore, the application and brief cite “to anything

that arguably might support the appeal[.]”      Lilley, supra at 997 (citation

omitted); (see also Anders Brief, at 12-26). As noted by our Supreme Court

in Santiago, the fact that some of counsel’s statements arguably support the




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frivolity of the appeal does not violate the requirements of Anders.       See

Santiago, supra at 360-61.

      Having concluded that counsel’s petition and brief comply with the

technical Anders requirements, we must “conduct [our] own review of the

trial court’s proceedings and render an independent judgment as to whether

the appeal is, in fact, wholly frivolous.”    Lilley, supra at 998 (citation

omitted).

      Davis raises eight issues for our review: (1) the plea court committed

an error of law in allowing [him] to be prosecuted for Aggravated Assault

where there was no probable cause; (2) the plea court committed an error of

law in allowing him to be prosecuted for VUFA and PIC where the evidence

was illegally seized without probable cause, exigent circumstances or a valid

search warrant; (3) the plea court violated Rule 600; (4) his nolo contendere

plea was improperly induced; (5) “[he] has the right to raise procedural

default claims on direct appeal[;]” (6) “[he] has the right to raise miscarriage

of justice claims on direct appeal[;]” (7) he has the right to raise a claim

related to constitutional rights recognized by the United States and

Pennsylvania Supreme Courts to apply retroactively; and (8) “[he] has the

right to raise ineffectiveness of counsel claims on direct appeal.” (Anders

Brief, at 8-26).




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                                               B.

       As a preliminary matter, it is well-settled that entering a plea waives all

non-jurisdictional defects and defenses, as well as the right to challenge

anything but the legality of sentence and the validity of the plea.                    See

Commonwealth v. Jones, 929 A.2d 205, 208 (Pa. 2007). Davis expressly

acknowledged this at his plea hearing and in his written nolo contendere

colloquy form.      (See N.T. Plea Hearing, 1/30/17, at 10-11; Written Nolo

Contendere Colloquy, 1/30/17, at 3).                The court also advised him that by

entering a plea, Davis was giving up his right to challenge any pretrial issues,

including the validity of the search and seizure and any alleged Rule 600

violations. (See N.T. Plea Hearing, at 9; Written Nolo Contendere Colloquy,

at 2). Therefore, the only issue properly before this Court is Davis’s fourth,

in which he challenges the validity of his plea. (See Anders Brief, at 12).3

       To withdraw a plea after sentencing, the defendant must show prejudice

that rises to the level of manifest injustice. See Commonwealth v. Byrne,

833 A.2d 729, 737 (Pa. Super. 2003). “A plea rises to the level of manifest

injustice   when     it   was    entered       into    involuntarily,   unknowingly,    or

unintelligently.” Id. (citation omitted). A defendant’s disappointment in the

sentence imposed is not manifest injustice.              See id.    Prior to accepting a


____________________________________________


3This Court considers the totality of the circumstances to determine a plea’s
validity. See Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super.
2001).


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defendant’s nolo contendere plea, the court “must delve into six areas: 1) the

nature of the charges, 2) the factual basis for the plea, 3) the right to a jury

trial, 4) the presumption of innocence, 5) the sentencing ranges, and 6) the

plea   court’s   power   to   deviate   from   any   recommended     sentence.”

Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005)

(citations omitted); see also Pa.R.Crim.P. 590, Comment. “A defendant is

bound by the statements made during the plea colloquy, and [he] 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), appeal denied, 63 A.3d 773 (Pa. 2013) (citation omitted).

       Here, our review of the record confirms that the court ensured that Davis

understood the nature of the charges against him, the factual basis of the

plea, his right to a jury trial, the presumption of innocence, the potential

sentencing range and that the judge was not bound by the recommended

sentence. (See N.T. Plea, at 6-9, 11-13; Written Plea Colloquy, at 1-2). The

court explained that by pleading nolo contendere, Davis gave up his right to

challenge pre-trial issues, including those regarding the suppression of

evidence and Rule 600. (See N.T. Plea, at 9; Written Plea Colloquy, at 2).

Davis stated that he was satisfied with counsel’s performance and that he

read, understood and signed the written plea form. (See N.T. Plea, at 7, 11;

Written Plea Colloquy, at 3).




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       Hence, we conclude that Davis’s claim that he did not voluntarily,

knowingly and intelligently enter his guilty plea is belied by the record.

Therefore, his issue lacks merit and he is due no appellate relief.

                                               C.

       Although Davis waived the remainder of his issues by entering his plea,

we will review them briefly for the sake of completeness.

                                               1.

       In his first issue, Davis alleges that the trial court erred in allowing the

count for Aggravated Assault to go forward because there was not probable

cause to support the charge.4 (See id. at 8-9).

       It is well-settled that for a case to proceed beyond the preliminary

hearing, the Commonwealth must establish a prima facie case. See Jones,

supra at 208.

       The Commonwealth establishes a prima facie case when it
       produces evidence that, if accepted as true, would warrant the
       trial judge to allow the case to go to a jury. … Inferences
       reasonably drawn from the evidence of record which would
       support a verdict of guilty are to be given effect, and the evidence
       must be read in the light most favorable to the Commonwealth’s
       case.




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4 By entering a nolo contendere plea, Davis stated that he was not contesting
the allegations against him, and admitted that, if proven, they would meet the
elements to establish Aggravated Assault, VUFA and PIC. (See N.T. Plea
Hearing, at 12-14); Commonwealth v. Moser, 999 A.2d 602, 606 (Pa.
Super. 2010), appeal denied, 20 A.3d 485 (Pa. 2011).


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Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001) (citations

and quotation marks omitted).

      A person commits aggravated assault when he “attempts to cause

serious bodily injury to another, or causes such injury intentionally, knowingly

or recklessly under circumstances manifesting extreme indifference to the

value of human life[.]” 18 Pa.C.S. § 2702(a)(1); see also Commonwealth

v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (en banc), appeal denied,

78 A.3d 1089 (Pa. 2013) (“For aggravated assault purposes, an attempt is

found where an accused who possesses the required, specific intent acts in a

manner which constitutes a substantial step toward perpetrating a serious

bodily injury upon another.”) (citation omitted).

      In this case, Davis pleaded no contest to facts that he broke into Scott’s

home and put a gun to her head, repeatedly tapping her with it. (See N.T.

Plea, at 12). Based on these facts and Davis’s plea, the court found Davis

guilty of Aggravated Assault.

      Based on the foregoing, we conclude that the court did not commit an

error of law in finding that the Commonwealth established probable cause that

Davis possessed a specific intent to commit Aggravated Assault when he took

a substantial step in causing serious bodily injury to Scott. This claim would

lack merit.




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                                       2.

      In his second allegation of error, Davis claims that the evidence

supporting the charges of VUFA and PIC “was unlawfully seized” because the

police lacked “probable cause, exigent circumstances, or a valid search

warrant.” (Anders Brief, at 10).

            Under both the Fourth Amendment of the United States
      Constitution and Article I, Section 8 of the Pennsylvania
      Constitution, a search conducted without a warrant is deemed to
      be unreasonable, and therefore, constitutionally impermissible,
      unless an established exception applies. One such exception is
      consent, voluntarily given. Consent may be express or implied.

Commonwealth v. Fredrick, ___ A.3d ___, 2020 WL 1527087, at *3 (Pa.

Super. March 31, 2020) (citations and quotation marks omitted).

      Further, pursuant to the plain view doctrine:

      evidence in plain view of the police can be seized without a
      warrant. The plain view doctrine applies if 1) police did not violate
      the Fourth Amendment during the course of their arrival at the
      location where they viewed the item in question; 2) the item was
      not obscured and could be seen plainly from that location; 3) the
      incriminating nature of the item was readily apparent; and 4)
      police had the lawful right to access the item.

Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012),

appeal denied, 51 A.3d 837 (Pa. 2012) (citations omitted).

      Here, evidence of record establishes that based on the information

provided by Scott, the police went to the stereo store where Davis worked to

look for him. Upon seeing the lights on in the store late at night, they knocked

on the door, Davis unlocked it and he voluntarily allowed them inside. (See

PCRA Petition, Exhibit 1, The Philadelphia Police Investigation Interview, at 1).

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This consent excused the warrant requirement and the police entry into the

store was constitutional. See Fredrick, supra at *3.

       Upon entering the store, the officers frisked Davis for weapons, felt

something that based on the officer’s training and experience, seemed like a

bullet in his pocket. Upon walking through the store to secure it for officer

safety, an officer went into the bathroom where he observed a black gun and

backpack matching the description provided by Scott in plain view. (See PCRA

Petition, Exhibit 1, The Philadelphia Police Investigation Interview, at 1).

Under the totality of the circumstances, the incriminating nature of this

evidence was readily apparent to the officers. See Anderson, supra at 1248.

       Based on the foregoing, Davis’s second claim, that the charges of VUFA

and PIC were not valid because they were based on evidence seized during an

illegal search, would lack merit, even if not waived.

                                               3.

       In his next issue, Davis maintains that “[t]he plea court committed an

error of law in allowing procedural default which caused [him] to be

imprisoned for an inordinate amount of time and prosecuted.” (Anders Brief,

at 11). We interpret this allegation as raising a Rule 600 claim.5



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5 Appellate review of a Rule 600 claim is for an abuse of discretion and is
limited to the record evidence and the trial court’s findings.         See
Commonwealth v. Plowden, 157 A.3d 933, 936 (Pa. Super. 2017), appeal
denied, 170 A.3d 1043 (Pa. 2017).


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      Pursuant to Rule 600, trial must commence within one year “from the

date on which” a written complaint is filed against the defendant. Pa.R.Crim.P.

600(A)(2)(a).    The clock stops running for Rule 600 purposes during

excludable and excusable time. See Commonwealth v. Moore, 214 A.3d

244, 248 (Pa. Super. 2019), appeal denied, 224 A.3d 360 (Pa. 2020). Delay

that is not attributable to the Commonwealth’s failure to exercise due diligence

and is caused by the defendant is “excludable.” See Pa.R.Crim.P. 600(C)(1);

Moore, supra at 248. “Excusable” delay is “delay … caused by circumstances

beyond the Commonwealth’s control and despite its due diligence.” Moore,

supra at 249.

      “Due diligence includes … listing a case for trial prior to the run date,

preparedness for trial within the run date, and keeping adequate records to

ensure compliance with Rule 600.” Id. Any “period of delay … outside the

control of the Commonwealth and not the result of the Commonwealth’s lack

of due diligence” extends the adjusted run date, resulting in the Rule 600 run

date. Id.

      Here, the Commonwealth filed the Complaint against Davis on March

27, 2015, making the mechanical run date Monday, March 28, 2016.            The

Commonwealth requested a three-week continuance on May 1, 2015, and one

for 18 days on May 22, 2015. Davis was granted 94 days in continuances,

which was excludable time, and resulted in an adjusted run date of June 30,




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2016. A waiver trial was scheduled for April 19, 2016, prior to the adjusted

run date’s expiration.

      On April 19, 2016, the scheduled trial date, the defense requested a

two-day continuance. Thereafter, trial was continued for another 284 days,

none of which was attributable to the Commonwealth, making April 12, 2017,

the final Rule 600 run date. Hence, Davis’s January 30, 2017 plea was entered

before the adjusted run date’s expiration. Based on the foregoing, even if this

issue was not waived, Davis would be due no relief.

                                       4.

      In his fifth through seventh claims of error, Davis states that he has the

right to raise “procedural default,” “miscarriage of justice” and retroactive

constitutional right claims in this appeal. (Anders Brief, at 14). His vague

statements, without more, render us unable to conduct a review and Davis is

due no relief. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.

2009), cert. denied, 562 U.S. 906 (2010) (“[W]here an appellate brief fails to

provide any discussion of a claim with citation to relevant authority or fails to

develop the issue in any other meaningful fashion capable of review, that claim

is waived.”).

                                       5.

      In his final claim, Davis argues that counsel was ineffective.       (See

Anders Brief, at 15).      However, generally, this Court will not consider




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ineffectiveness claims until collateral review. See Commonwealth v. Grant,

813 A.2d 726, 738 (Pa. 2002). Therefore, we will not review this issue.6

        Hence, for all these reasons, Davis is due no relief on his claims.

Moreover, our independent review of the record does not reveal any non-

frivolous issues for our review. We affirm the judgment of sentence and grant

counsel’s application to withdraw.

        Judgment of sentence affirmed.             Counsel’s application to withdraw

granted.

        President Judge Panella joins the memorandum.

        Judge Nichols did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/04/2020




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6 Moreover, if Davis intends to allege that counsel was ineffective in relation
to his plea, he would not be entitled to relief because, as discussed in
reviewing his fourth issue, his nolo contendere plea was voluntary, intelligent
and knowing.

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