J-S45011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

QUINZELL REDDICK,

                            Appellant                 No. 485 EDA 2013


           Appeal from the Judgment of Sentence February 7, 2013
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009191-2011


BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 11, 2014

       Quinzell Reddick appeals from the aggregate judgment of sentence of

twenty-five to fifty years incarceration imposed by the trial court after he

entered a guilty plea to third-degree murder, attempted murder, possession



license. We affirm.

       The Commonwealth relayed the following facts at the guilty plea



             [O]n January 12th of 2011 at about 11:20 p.m. the
       defendant was inside a car with the decedent who was driving
       the car, Correal Combs and Ms. Erica Rosa, who is the front seat
       passenger. The defendant got out of the back of the car as did
       Mr. Combs get out [of] the front of the car. The defendant went
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      around the back of the car and approached Mr. Combs, pulled
      out a .45 caliber semi-automatic handgun and started shooting
      Mr. Combs. Mr. Combs ran down the street, this was 28th Street
      between Somerset and Lehigh. He was hit multiple times by the
      defendant.

            The defendant proceeded towards Mr. Combs who was

      door and turned and looked at Ms. Rosa who was in the front

      and struck Ms. Rosa. She fled from the car, actually in the same
      direction of Mr. Combs, towards Lehigh Avenue. She was shot
      twice in the back, bullets exited her chest. She flagged down a
      car on Lehigh Avenue, police responded, and she was taken to
      the hospital where she stayed for weeks but recovered and was
      eventually released.

            The defendant returned to Mr. Combs and shot Mr. Combs
      while he was down on the ground. Mr. Combs was shot a total
      of 12 times from his legs through his torso and his neck. He was
      taken from the scene. He was pronounced [dead] at Temple
      Hospital.   He was then taken to the Office of the Medical
      Examiner, Doctor Blanchard examined Mr. Combs and found to a
      reasonable degree of professional medical certainty that
      Mr. Combs had been shot those 12 times. The manner of death
      and the cause of death were gunshot wounds and homicide.

           The defendant did not have license in the state of
      Pennsylvania to carry a handgun concealed on his person or in a
      car.

N.T., 12/12/12, 68-70.

      Prior to the Commonwealth setting forth the above-mentioned facts, a

jury had been selected to try Appellant and the case was ready to proceed to

trial that day.   The court thoroughly colloquied Appellant on the record.

Appellant also completed a written guilty plea colloquy. The plea agreement

reached with the Commonwealth was that it would request a twenty-five to

fifty year sentence and drop the first-degree murder charge. The court did

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not sentence Appellant that same date at his request, but noted that it

would not permit him to withdraw his plea.           At sentencing, however,

Appellant asked to withdraw his plea. He averred that his plea was coerced

by counsel and that he did not understand that the maximum recommended

sentence was fifty years.   At one point, Appellant asked to be allowed to

proceed to trial to maintain his innocence where his plea had been entered




aforementioned sentence. This appeal ensued. The court directed Appellant

to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal. Appellant complied, asserting that his plea was not knowingly,

intelligently, and voluntarily entered.    The court authored its Pa.R.A.P.




plea, p



     Appellant argues that under Commonwealth v. Forbes, 299 A.2d

268 (Pa. 1973), and it progeny, because he sought to withdraw his plea

prior to sentencing and asserted his innocence, he is entitled to relief.

Appellant,   quoting   Commonwealth       v.   Carrasquillo,   78   A.3d   1120

(Pa.Super. 2013) allowance of appeal granted 86 A.3d 830 (Pa. 2014),


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highlights that Forbes set forth that a trial court should allow the withdrawal

of a plea before sentencing for any fair and just reason absent the

prosecution being substantially prejudiced.      According to Appellant, in

requesting to withdraw his plea, he asserted that he was innocent before the

court imposed its sentence. Significantly, he no longer contends in his legal

argument that the plea was the product of coercion or confusion.

      The Commonwealth begins its reply with a waiver argument. It first

maintains that Appellant did not clearly assert his innocence at the

sentencing hearing. In this respect, the Commonwealth acknowledges that



maintain [his] innocence and not allow [him] to make a tactical decision

                                           N.T., 2/7/13, at 10.    However, it




                                                                   reference to



          Id. at 20.

      In addition, the Commonwealth contends that Appellant did not include

within his Pa.R.A.P. 1925(b) concise statement a claim that he should be

permitted to withdraw his plea based on an assertion of innocence. Rather,

according to the Commonwealth, Appellant set forth that his plea was not




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knowingly, voluntarily, and intelligently entered and he was coerced into

pleading guilty.

       With regard to

disputes that Appellant is entitled to the more liberal withdrawal standard

normally associated with pre-sentencing requests. In leveling this aspect of

                                                        he more rigorous standard

for post-

                                               Commonwealth v. Lesko, 467 A.2d

307, 310 (Pa. 1983)).        The Commonwealth argues that because Appellant

entered a negotiated plea with an agreed upon sentence, which the court

had accepted, the term of his incarceration was already set.1 Accordingly, it

suggests that the post-sentence standard should apply.                Under that

standard, a defendant must show a manifest injustice would result if he is

not permitted to withdraw his plea.

       It further highlights that the trial court engaged in a lengthy oral

colloquy with Appellant regarding his plea, and Appellant completed a

written guilty plea colloquy.        These colloquies demonstrate that Appellant

knowingly, intelligently, and voluntarily was pleading guilty. Moreover, the

Commonwealth points out that, in the post-sentence withdrawal context, a


____________________________________________


1
   We note that the sentence was not agreed upon, only that the
Commonwealth agreed to recommend that sentence.



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defendant is bound by statements he makes under oath and cannot attempt

to withdraw his plea based on statements that contradict his earlier plea.

      The Commonwealth adds that even applying the more liberal pre-

sentence withdrawal standard, Appellant did not demonstrate a fair and just

reason to withdraw his plea.         Relying on Commonwealth v. Walker, 26

A.3d 525 (Pa.Super. 2011), and Commonwealth v. Tennison, 969 A.2d



time reference to innocence was not a clear assertion of innocence.

      We agree that Appellant waived his issue by not including it within his



      1. Defendant Quinzell Reddick states that his negotiated guilty
         plea was not given knowingly, intelligently and voluntarily, for
         the following reasons:

         a. Defendant states that his plea was coerced and that he
            was confused at the time of the plea.

         b.
              prior to sentencing.

         c. The    court   committed     substantial   legal   error,   unduly

              motion to withdraw his plea and proceed to trial.

         d. The defendant states that he did not understand his
            sentence as it related to maximum and minimum
            sentences.

         e.     In his Form AOPC 2006, Revision 09-30-2010, Colloquy
              for Plea of Guilty, the permissible range of sentence
              section was not listed.




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appeal, 7/8/13.

      Thus, it is clear that Appellant did not maintain in his 1925(b)

statement that the grounds for which he was seeking to withdraw his plea

was an assertion of innocence. Since Appellant abandoned the issues in his

Rule 1925(b) statement, he must await collateral review to litigate the

merits of his current underlying claim.

      Judgment of sentence affirmed.

      Justice Fitzgerald Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2014




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