J-S27028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CALIL TIMAZEE                              :
                                               :
                       Appellant               :   No. 2168 EDA 2019

          Appeal from the Judgment of Sentence Entered June 17, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0004012-2017


BEFORE:      SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.:                              FILED JULY 08, 2020

        Calil Timazee (Appellant) appeals from the judgment of sentence1

entered in the Philadelphia County Court of Common Pleas, following his guilty

plea to third-degree murder and possessing instruments of crime2 (PIC).

Appellant’s attorney, Earl Kauffman, Esquire (Counsel), has filed an




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* Former Justice specially assigned to the Superior Court.

1 Appellant purported to appeal from the order, entered July 12, 2019, denying
his post-sentence motion. However, the appeal lies properly from the
judgment of sentence, entered June 17, 2019. We have amended the caption
accordingly.

2   18 Pa.C.S. §§ 2502(c), 907(a), respectively.
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Anders/Santiago3 brief and petition to withdraw from representation. We

grant Counsel’s petition and affirm the judgment of sentence.

       The Commonwealth presented the following allegations at the plea

hearing. Boris Kimber, Jr. (Victim), and his girlfriend, Imani Talbert,4 were

temporarily staying at Appellant’s apartment. N.T. Guilty Plea, 4/22/19, at

24. “[O]n April 24[,] 2017, just several minutes after midnight,” Appellant,

Victim, and Talbert were at the apartment.5 Id. at 23. Appellant

       informed [Victim] and his girlfriend that due to ongoing problems
       they were no longer welcome in his home, and an argument
       ensued.

       [Victim] made threats against [Appellant] and his girlfriend. He
       then sat down in the living room[. H]e was smoking a cigarette
       with his left hand, when [Appellant] pulled out a 40-caliber Glock
       that he was legally licensed to carry. He shot [Victim] nine times
       as [Victim] was seated smoking a cigarette.

                                          *    *   *

           [Victim sustained nine gunshots. H]e was unarmed at the
       time.



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3Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009)

4Talbert’s first name is also spelled “Emani” elsewhere in the record. See
N.T. Motions, 7/12/19, at 5.

5 At the plea hearing, the Commonwealth first stated Appellant’s girlfriend was
also present at the apartment, but later stated, without specifying who, “the
girlfriend [was] the only other person in the room at the time of the shooting.”
N.T., 4/22/19, at 23-24, 27. At the sentencing hearing, defense counsel
clarified the eyewitness to the shooting was Victim’s girlfriend, Talbert. N.T.
Sentencing, 6/17/19, at 3-4.

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              [Victim’s girlfriend, Talbert,] would testify to all of the above
        if called at trial, including the fact that [Victim] did not have a gun,
        a knife, or anything else in his hands or on his person aside from
        the cigarette . . . .

            [Appellant] called 911. He reported to the operator he had
        shot [Victim] in self-defense. He specifically said that he had shot
        him multiple times in his chest.

Id. at 24-25. Victim was pronounced deceased at the scene. Id. at 25.

        Appellant was charged with various offenses. On April 22, 2019, the

day a jury trial was to commence, Appellant entered a non-negotiated guilty

plea to third-degree murder and PIC.6

        On June 17, 2019, the parties appeared for sentencing.            Appellant’s

counsel made an oral motion to withdraw the plea, arguing Appellant “ha[d]

just informed [him] that his family . . . found some social media posts,” sent

from Talbert to Appellant’s girlfriend, “indicating that [Talbert] was dishonest

to the police about what she told them[.]” N.T., 6/17/19, at 2-3. Counsel,

however, acknowledged he had not seen any of the alleged social media posts,

but was merely provided this information.            Id. at 3.    The court denied

Appellant’s withdrawal motion.          The court, which had reviewed the pre-

sentence investigation report (PSI), then imposed a sentence of 20 to 40

years’ imprisonment on the third-degree murder conviction.                No further

penalty was imposed for PIC.



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6   We note the certified record does not include any written plea colloquy.


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       Appellant filed a timely post-sentence motion, seeking leave to withdraw

his guilty plea, as well as reconsideration of his sentence.          The trial court

conducted a hearing on July 12, 2019, at which Appellant argued Talbert sent

Facebook messages to Appellant’s girlfriend, admitting that Victim “was

violent[ and] had beaten her up . . . which is in direct contradiction to her

statement and her testimony at the preliminary hearing” that Victim was not

violent.   N.T., 7/12/19, at 5-6, 17.          Appellant also testified he previously

witnessed Victim act violently toward Talbert, but believed he “had to plead

guilty because there was no way to prove [Talbert] was lying.” Id. at 11-12.

Upon further examination, however, Appellant admitted he was in possession

of the messages the week prior to the shooting — two years prior to his plea.

Id. at 21-22, 35. Appellant explained that with the confiscation of his phone

upon arrest and all that was occurring, “[t]he last thing [he] was thinking

about was messages in [his] phone.”              Id. at 33.   The trial court denied

Appellant’s request to withdraw his plea.             Additionally, following further

argument, the court denied reconsideration of Appellant’s sentence.

       Appellant filed a timely pro se notice of appeal.7 Subsequently, the court

granted Appellant’s attorney’s motion to withdraw from representation and

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7 Although Appellant was represented by counsel, the court clerk properly
docketed his pro se notice of appeal. See Pa.R.Crim.P. 576(A)(4) (if
represented criminal defendant submits for filing a notice of appeal that has
not been signed by his attorney, the clerk of courts shall accept it for filing,
and a copy of the time-stamped document shall be forwarded to defendant’s



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appointed current counsel, Attorney Kauffman.        In response to the court’s

order to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal,

Counsel filed a statement of intent to file an Anders brief.8 See Pa.R.A.P.

1925(c)(4) (2014) (“In a criminal case, counsel may file of record and serve

on the judge a statement of intent to file an Anders/McClendon[9] brief in

lieu of filing a Statement.”).

        Counsel’s Anders brief presents three claims:

        1. Whether the trial court abused its discretion when it denied
        [A]ppellant’s Motion to Withdraw his Non-Negotiated Guilty Plea
        prior to being sentenced.

        2. Whether the trial court abused its discretion when it denied
        [A]ppellant’s second try to withdraw his guilty plea, post-
        sentence, based on [A]ppellant’s after-discovered evidence.

        3. Whether the trial court abused its discretion when it sentenced
        [A]ppellant to a harsh and unreasonable sentence when he had
        mitigation based on military service, [post-traumatic distress
        disorder (PTSD)], no prior record and community service[.]

Anders Brief at 4.10




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attorney and Commonwealth within 10 days); Commonwealth v. Wooden,
215 A.3d 997, 1000 (Pa. Super. 2019) (although defendant’s attorney
remained as counsel of record, it was proper for trial court clerk to docket
defendant’s pro se notice of appeal).

8   Counsel also filed a notice of appeal on July 28, 2019.

9   Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).

10   We have reordered the issues for ease of review.

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      “[W]e may not address the merits of the issue raised on appeal without

first reviewing the request to withdraw.” Commonwealth v. Cartrette, 83

A.3d 1030, 1032 (Pa. Super. 2013) (en banc).           An attorney seeking to

withdraw from representation on appeal

      must: 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) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that he
      or she has the right to retain private counsel or raise additional
      arguments that the defendant deems worthy of the court’s
      attention.

Id. Pursuant to Santiago, counsel must also:

      (1) provide a summary of the procedural history and facts, with
      citations to the record; (2) refer to anything in the record that
      counsel believes arguably supports the appeal; (3) set forth
      counsel’s conclusion that the appeal is frivolous; and (4) state
      counsel’s reasons for concluding that the appeal is frivolous.
      Counsel should articulate the relevant facts of record, controlling
      case law, and/or statutes on point that have led to the conclusion
      that the appeal is frivolous.

Id., quoting Santiago, 978 A.2d at 361.

      Here,   Counsel’s   brief   and   petition   comply   with   the   technical

requirements of Anders and Santiago. See Cartrette, 83 A.3d at 1032.

Moreover, Counsel attached a copy of a letter he sent to Appellant, advising

him of his right to proceed with newly retained counsel or pro se and raise any

additional points for this Court’s attention.      Appellant has not filed any

response. Accordingly, we proceed to conduct “a full examination of all the

proceedings, to decide whether the case is wholly frivolous. If [we] so find[,

we] may grant counsel’s request to withdraw and dismiss the appeal[.]”

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Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa. Super. 2018) (en

banc) (quotation omitted).

      Here, the Anders brief presents the issues of whether the trial court

erred in denying Appellant’s pre-sentence and post-sentence requests to

withdraw his plea. With respect to a pre-sentence motion to withdraw a

plea, this Court has stated:

           A decision regarding whether to accept a defendant’s pre-
      sentence motion to withdraw a guilty plea is left to the discretion
      of the sentencing court. Pennsylvania Rule of Criminal Procedure
      591 provides:

          At any time before the imposition of sentence, the court
          may, in its discretion, permit, upon motion of the
          defendant, or direct, sua sponte, the withdrawal of a plea
          of guilty or nolo contendere and the substitution of a plea
          of not guilty.

      Pa.R.Crim.P. 591(A) (emphasis added).

          There is no absolute right to withdraw a guilty plea.
      Nevertheless, “prior to the imposition of sentence, a defendant
      should be permitted to withdraw his plea for ‘any fair and just
      reason,’” provided there is no substantial prejudice to the
      Commonwealth.

          We will not disturb the decision of the [trial] court absent an
      abuse of discretion. . . .

Commonwealth v. Broaden, 980 A.2d 124, 128 (Pa. Super. 2009) (some

citations omitted).

      On the other hand, we consider a post-sentence request to withdraw

a plea under these principles:

      . . . “[P]ost-sentence motions for withdrawal are subject to higher
      scrutiny since courts strive to discourage entry of guilty pleas as

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      sentence-testing devices.” A defendant must demonstrate that
      manifest injustice would result if the court were to deny his post-
      sentence motion to withdraw a guilty plea. “Manifest injustice
      may be established if the plea was not tendered knowingly,
      intelligently, and voluntarily.” In determining whether a plea is
      valid, the court must examine the totality of circumstances
      surrounding the plea. A deficient plea does not per se establish
      prejudice on the order of manifest injustice.

Broaden, 980 A.2d at 129 (citations omitted).

      At the beginning of the sentencing hearing, Appellant informed his

counsel that his family “found some social media posts” from Talbert,

addressed to Appellant’s girlfriend, purporting to admit she (Talbert) “was

dishonest to the police [about] what happened in the apartment.”            N.T.,

6/17/19, at 3. Appellant, however, did not produce the alleged text messages,

and indeed, counsel acknowledged he had not viewed the messages. Id. The

trial court commented, “[T]hat’s pretty vague information.” Id. In denying

Appellant’s request to withdraw the plea, the court advised Appellant “[h]e

can file the appropriate post[-]sentence motion if he can . . . develop some

[additional] information.” Id. at 5.

      On review of this record, we conclude the trial court did not abuse its

discretion in denying Appellant’s pre-sentence motion to withdraw his plea.

See Broaden, 980 A.2d at 128. Appellant’s mere allegation — that his family

discovered social media messages between Talbert and his girlfriend —

without any supporting evidence, did not present any “any fair and just

reason” for withdrawal. See Pa.R.Crim.P. 591(A). Accordingly, we agree with

Counsel that this issue is frivolous.

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        We likewise conclude the trial court did not err in denying Appellant’s

post-sentence motion to withdraw his plea. Appellant plainly acknowledged

he knew of the social media messages at the time of his arrest, a full two

years before he pleaded guilty.11 See N.T., 7/12/19, at 35. Thus, his initial

claim at the sentencing hearing, that he “just” learned of these messages,

was disingenuous; instead, Appellant was aware of the messages and yet still

entered a plea.      See N.T., 6/17/19, at 2-3.        Thus, this issue is likewise

frivolous. See Broaden, 980 A.2d at 129.

        Finally, the Anders brief presents a claim that the trial court imposed a

harsh and unreasonable sentence, where Appellant presented mitigating

circumstances: “his military service, PTSD, no prior record and community

service[.]” Anders Brief at 4.




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11   We note Appellant’s testimony:

        THE COURT: So you had seen [the messages] before you got
        locked up? It’s a simple question.

        [Appellant:] Yes, Your Honor.

                                       *       *   *

        [Commonwealth:] So you had seen the messages on your phone,
        and you’ve known about them for the two years you were in
        custody awaiting trial, correct?

        [Appellant:] Correct.

N.T., 7/12/19, at 35.

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      “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010). Instead, to invoke our review, an appellant must,

inter alia, present “a substantial question that the sentence appealed from is

not appropriate under the Sentencing Code[.]” Id. (citation omitted).

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists “only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent
      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.”

Id. (citations omitted).   “An allegation that the sentencing court failed to

consider certain mitigating factors generally does not necessarily raise a

substantial question.” Id. at 171.

      Accordingly, Appellant’s claim, that the trial court did not consider

mitigating circumstances when fashioning his sentence, does not raise a

substantial question invoking our review. See Moury, 992 A.2d at 171.

      Moreover, even if we were to review the merits of this claim, no relief

would be due. We review the discretionary aspects of sentencing for an abuse

of discretion. Moury, 992 A.2d at 169.

      “When imposing a sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant.”     “In particular, the court should refer to the
      defendant’s prior criminal record, his age, personal characteristics
      and his potential for rehabilitation.” Where the sentencing court
      had the benefit of a [PSI], we can assume the sentencing court
      “was aware of relevant information regarding the defendant’s
      character and weighed those considerations along with mitigating
      statutory factors.”

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Id. at 171 (citations omitted). “[W]here a sentence is within the standard

range of the guidelines, Pennsylvania law views the sentence as appropriate

under the Sentencing Code.” Id.

      As stated above, the trial court reviewed the PSI, to which it referred at

the sentencing hearing. N.T., 6/17/19, at 8-9, 39. Id. at 10. The court also

weighed Appellant’s military service, PTSD diagnosis, and community service:

      This Court considered [Appellant’s] lack of a prior record and his
      tumultuous childhood in which he spent most of his time in various
      group and foster homes.        This Court also considered that
      [Appellant] received his high school diploma in 2006, served in
      both the United States Army and the National Guard, and was
      deployed to Iraq, which resulted in his [PTDS] diagnosis.

           This Court heard victim impact statements and testimony
      from [Victim’s] family. This Court listened to defense witnesses,
      including [Appellant’s] foster mother, stepmother, and a veteran’s
      service officer at the Philadelphia Office of Veteran Affairs, who all
      testified to [Appellant’s] character, PTSD diagnosis, and remorse.
      This Court also considered [Appellant’s] lengthy allocution where
      he detailed his extensive knowledge of guns and expresses his
      apologies for his actions.

           Before imposing its sentence, this Court considered mitigating
      factors, such as [Appellant’s] military service and community
      involvement.      However, this Court could not discount the
      significant threat [Appellant] posed to the community and the fact
      that he had not accepted full responsibility for his actions. The
      facts in the record establish that [Appellant] aimed his gun at
      [Victim’s] chest, a vital body part, and he emptied his gun of all
      nine bullets. At the time of the shooting, [Appellant] knew
      [Victim] was unarmed, and had no justification for using deadly
      force. This Court’s sentence was based on all relevant factors,
      such as the gravity of the offense and protection of the public.

Trial Ct. Op., 9/18/19, at 10-11.




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       Finally, we note the trial court stated Appellant’s prior record score was

0 and the sentence of 20 to 40 years was within the Sentencing Guidelines’

standard range.12 See Moury, 992 A.2d at 171 (where sentence is within

standard range, it is viewed as appropriate under Sentencing Code). The court

imposed no further penalty for PIC.            In light of the foregoing, we would

conclude the trial court properly considered the particular circumstances of

this offense, Appellant’s character and potential for rehabilitation. Thus, this

sentencing issue is likewise frivolous.

       As we discern no non-frivolous issues to be raised on appeal, we grant

Counsel’s petition to withdraw from representation and affirm Appellant's

judgment of sentence. See Yorgey, 188 A.3d at 1196.

       Judgment of sentence affirmed. Counsel’s petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2020



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12Third-degree murder carries an offense gravity score of 14, and with the
deadly weapon enhancement, the standard range sentence for Appellant was
90 months to the statutory limit of 20 years, plus or minus 12 months. N.T.,
6/17/19, at 6; Trial Ct. Op. at 11.

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