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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
JASON V. SIDERIO,                        :
                                         :
                 Appellant               :    No. 2626 EDA 2017

            Appeal from the Judgment of Sentence July 11, 2017
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0004420-2015

BEFORE:     OTT, J., DUBOW, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:              FILED FEBRUARY 13, 2019

     Jason V. Siderio (Appellant) appeals from the judgment of sentence

imposed following his negotiated guilty plea. Upon review, we affirm.

     Michael Joseph Walsh was fatally shot in South Philadelphia on January

22, 2015.   In March 2015, the Commonwealth charged Appellant with the

murder of Walsh, two felony and one misdemeanor counts relating to

violations of the Uniform Firearms Act, and one misdemeanor count of

possessing an instrument of crime.

     On July 11, 2017, Appellant entered a negotiated guilty plea to one

count of third-degree murder, one second-degree felony count of person not

to possess a firearm, and one misdemeanor count of possessing an

instrument of crime. The trial court sentenced Appellant on the same date




*Retired Senior Judge assigned to the Superior Court.
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to an aggregate term of 25 to 50 years in prison in accordance with the plea

agreement.1

        Appellant timely filed a post-sentence motion to withdraw his guilty

plea. Within the motion, Appellant made a bare assertion of his innocence

and averred that he did not enter into the plea voluntarily and knowingly.

Motion to Withdraw Plea, 8/20/2017, at ¶¶ 4-5. Specifically, he contended

that his decision to plead guilty was “clouded by the pressure of the

consequences of a verdict of guilty” and that he did not understand the

guilty plea colloquy.      Id.   Following argument, the trial court denied

Appellant’s motion on August 2, 2017.

        This timely-filed appeal followed.2 Appellant presents one issue for our

consideration: whether the trial court abused its discretion by denying his

post-sentence motion to withdraw his guilty plea. See Appellant’s Brief at 6.

        This Court reviews the denial of a post-sentence motion to withdraw a

guilty plea by the following standard.

        It is well-settled that the decision whether to permit a defendant
        to withdraw a guilty plea is within the sound discretion of the
        trial court. Although no absolute right to withdraw a guilty plea
        exists in Pennsylvania, the standard applied differs depending on
        whether the defendant seeks to withdraw the plea before or
        after sentencing. When a defendant seeks to withdraw a plea
        after sentencing, he must demonstrate prejudice on the order of

1 Appellant also pleaded guilty and was sentenced during the same hearing
in an unrelated case.
2   Both Appellant and the trial court complied with Pa.R.A.P. 1925.



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     manifest injustice. [A] defendant may withdraw his guilty plea
     after sentencing only where necessary to correct manifest
     injustice.

                                    ***

     Manifest injustice occurs when the plea is not tendered
     knowingly, intelligently, voluntarily, and understandingly. In
     determining whether a plea is valid, the court must examine the
     totality of circumstances surrounding the plea. Pennsylvania law
     presumes a defendant who entered a guilty plea was aware of
     what he was doing, and the defendant bears the burden of
     proving otherwise.

Commonwealth v. Hart, 174 A.3d 660, 664–65 (Pa. Super. 2017)

(internal citations and quotation marks omitted). Inter alia, the law imposes

a stricter standard for post-sentence withdrawal motions in order to balance

“the tension … between the individual’s fundamental right to a trial and the

need for finality in the proceedings.” Commonwealth v. Hvizda, 116 A.3d

1103, 1106 (Pa. 2015).

     On appeal, Appellant concedes that his answers during the colloquy at

the plea hearing “appear[] to show that [his] plea of [g]uilty was knowing,

intelligent, and voluntary,” and that he is bound by the answers he provided

under oath at the plea colloquy.    Appellant’s Brief at 10.   Nevertheless,

Appellant argues the trial court abused its discretion in denying his motion

based upon his averment in the motion that he did not understand the

colloquy and his counsel’s statement during the colloquy that Appellant




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“seemed to understand his rights.”3 Id. at 11 (emphasis in original) (citing

N.T., 7/11/2017, at 16).

      Our review of the transcript of the plea hearing reveals that following

Appellant’s oral colloquy, a brief exchange took place between the trial court

and Appellant’s counsel.

      THE COURT: Beginning with [Appellant’s counsel] first.
      [Counsel], have you discussed with your client his right to plead
      not guilty in the homicide case and go to trial?

      [APPELLANT’S COUNSEL]: I have, your Honor.

      THE COURT: Did he seem to understand his rights?

      [APPELLANT’S COUNSEL]: Yes, your Honor.

      THE COURT: Are you satisfied that he’s competent and qualified
      to enter into this negotiated plea of guilty?

      [APPELLANT’S COUNSEL]: I am.

N.T., 7/11/2017, at 16-17 (emphasis added).

      Appellant’s   argument     that    his   counsel’s   response   somehow

demonstrated the unknowing nature of his plea is utterly unconvincing.

3 To support his claim of manifest injustice, Appellant briefly mentions his
alleged innocence in passing in the summary of his argument. Appellant has
waived this claim; a mere reference in a summary of the argument is not a
substitute for a developed argument with citations to the record and
authority. See Pa.R.A.P. 2119(a). Even if Appellant had preserved the
issue in his brief, “this Court has held that post-sentence claims of innocence
do not demonstrate manifest injustice.” Commonwealth v. Kpou, 153
A.3d 1020, 1024 (Pa. Super. 2016); Commonwealth v. Myers, 642 A.2d
1103, 1108 (Pa. Super. 1994) (“A defendant’s post-sentence recantation of
guilt does not rise to the level of prejudice on the order of manifest injustice
sufficient to require that he be permitted to withdraw his plea of guilty.”).



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Appellant’s counsel could not read Appellant’s mind to be certain whether

Appellant truly understood his rights.         Counsel has no choice but to

communicate his assessment of whether Appellant seemed to understand his

rights based upon Appellant’s expressions, statements, questions, and other

clues.

         Moreover, Appellant fails to elaborate upon what specifically he did not

understand about the colloquy. The Commonwealth provided a description

of the elements of all three crimes to which Appellant was pleading guilty as

well as a detailed recitation of the facts it believed it could establish at trial.

N.T., 7/11/2017, at 23-25, 34-42.        The record reveals that the trial court

conducted an extensive colloquy in plain wording, which covered the

following: the potential sentence; the sentence recommended by the

Commonwealth; the terms of the plea agreement; the elements of the

crimes to which Appellant was pleading guilty; Appellant’s age of 34;

Appellant’s ability to read, write, and understand the English language based

upon his completion of the eleventh grade; Appellant’s state of mind free

from the influence of drugs, alcohol, prescribed medications, or mental

illness; the rights he was giving up by pleading guilty; and the effect upon

any probation or deportation. Id. at 4-45.

         Appellant affirmatively testified under oath that he was not threatened

or forced to plead guilty, and there was no other understanding between him

and the Commonwealth other than what was set forth in the plea


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agreement. Id. Further, he discussed his decision to plead guilty with his

attorneys; he was satisfied with the advice and representation of counsel;

the facts set forth by the Commonwealth during the plea hearing were

essentially true; he signed the written colloquy after he had read it and had

it explained to him so that he understood it; and he understood the rights

described by the trial court that he was giving up by pleading guilty.    Id.

Appellant’s concession in his brief4 is correct: his statements under oath

foreclose him from asserting that he did not understand the colloquy. See

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (“A

person who elects to plead guilty is bound by the statements he makes in

open court while under oath and he may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.”).

        Furthermore, Appellant spoke up when he had a question relating to

his sentence in his other case, and did not speak again when offered the

opportunity.     Id. at 4-5, 47.   He also signed a detailed written colloquy,

where he indicated in writing that he understood what he was signing. See

Written Guilty Plea Colloquy, 7/11/2017, at 3.

        Based on the foregoing, we agree with the trial court that Appellant

has not demonstrated the manifest injustice necessary to permit him to

4   See Appellant’s Brief at 10.




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withdraw the plea after sentence was imposed. The guilty plea colloquy in

this case establishes that he willingly and voluntarily agreed to plead guilty,

after negotiating a favorable plea bargain, with full understanding of the

consequences of his decision and of the rights he would be giving up by

pleading guilty.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 2/13/19




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