J-A33037-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
                  v.                    :
                                        :
DANIEL SHELLEY,                         :
                                        :
                       Appellant        :       No. 3029 EDA 2014


           Appeal from the Judgment of Sentence April 3, 2013,
           in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0001363-2012

BEFORE: FORD ELLIOTT, P.J.E., STABILE, STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 12, 2016

      Daniel Shelley (Appellant) appeals from the judgment of sentence

entered on April 3, 2013, following the entry of his guilty plea to the crimes

of third-degree murder and firearms not to be carried without a license. We

affirm.

      On October 11, 2012, Appellant was charged in the shooting death of

Hafeeza Nurid-Din, a bystander who was struck and killed during Appellant’s

ill-fated attempt to exact revenge on the man he believed had shot his

brother. On April 3, 2013, Appellant entered into a negotiated guilty plea to

the aforementioned charges and the court imposed the agreed-upon

aggregate sentence of 22½ to 45 years of imprisonment. Appellant’s counsel

timely filed a motion seeking to withdraw Appellant’s guilty plea, which was

denied by the trial court on April 17, 2013. No direct appeal was taken.


* Retired Senior Judge assigned to the Superior Court.
J-A33037-15


        On April 19, 2014, Appellant, through new counsel, timely filed a

petition pursuant to the Post-Conviction Relief Act (PCRA).1 By order dated

September 22, 2014, the trial court reinstated Appellant’s direct appeal

rights.    This timely appeal followed.    The trial court and Appellant have

complied with Pa.R.A.P. 1925.

        On appeal, Appellant raises four issues, each of which challenges the

validity of his guilty plea colloquy. Appellant’s Brief at 6. No relief is due.

        It is well-established that

        [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. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to
        employ either measure results in waiver. Historically,
        Pennsylvania courts adhere to this waiver principle because it is
        for the court which accepted the plea to consider and correct, in
        the first instance, any error which may have been committed.

        Likewise:

              Normally, issues not preserved in the trial court may
              not be pursued before this Court. Pa.R.A.P. 302(a).
              For example, a request to withdraw a guilty plea on
              the grounds that it was involuntary is one of the
              claims that must be raised by motion in the trial
              court in order to be reviewed on direct appeal.
              Similarly, challenges to a court’s sentencing
              discretion must be raised during sentencing or in a
              post-sentence motion in order for this Court to
              consider granting allowance of appeal. Moreover, for
              any claim that was required to be preserved, this
              Court cannot review a legal theory in support of that
              claim unless that particular legal theory was
              presented to the trial court. Thus, even if an
              appellant did seek to withdraw pleas or to attack the

1
    42 Pa.C.S. §§ 9541-9546.


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J-A33037-15


              discretionary aspects of sentencing in the trial court,
              the appellant cannot support those claims in this
              Court by advancing legal arguments different than
              the ones that were made when the claims were
              preserved.

Commonwealth v. Lincoln, 72 A.3d 606, 609–10 (Pa. Super. 2013) (some

citations and punctuation omitted).

        The record before us reveals that Appellant did not object during his

plea colloquy. Moreover, in his timely filed post-sentence motion seeking to

withdraw his plea, Appellant failed to assert the grounds for withdrawal upon

which he now relies. Because these issues are not preserved properly and

have been raised for the first time on appeal, Appellant’s claims are waived.

Lincoln, 72 A.3d 609–10.2 Accordingly, we affirm Appellant’s judgment of

sentence.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/12/2016




2
    We note that Appellant’s counsel conceded waiver at oral argument.


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