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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :       IN THE SUPERIOR COURT OF
                                         :             PENNSYLVANIA
                    v.                   :
                                         :
MARCUS JONES,                            :           No. 766 WDA 2015
                                         :
                         Appellant       :


          Appeal from the Judgment of Sentence, November 24, 2014,
              in the Court of Common Pleas of Allegheny County
              Criminal Division at Nos. CP-02-CR-0005593-2013,
                           CP-02-CR-0017261-2013


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED OCTOBER 26, 2016

        Marcus Jones appeals the judgment of sentence in which the trial court

sentenced him to serve an aggregate sentence of two and one-half to five

years’ imprisonment for possession with intent to deliver a controlled

substance (“PWID”)1 followed by five years’ probation.2

        With respect to PWID and the criminal use of a communication facility,

the trial court recounted the following facts:

             [O]n April 26, 2012, the Moon Township Police
             Department received a call that there was a

* Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
  The probation included five years’ concurrent probation for criminal use of
a communication facility, 18 Pa.C.S.A. § 7512(a), and two years’ concurrent
probation for simple assault, 18 Pa.C.S.A. § 2701(a)(3).
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          twenty-five year old deceased male in Room 136 at
          the Motel 6 located in Moon Township.          Officer
          Ian Lucas of the Moon Township Police Department
          was dispatched to the Motel 6 and when he arrived
          there, he met with the deceased male’s father,
          Stewart Brinkley. Brinkley identified the deceased as
          his son and Officer Lucas observed numerous
          needles and open stamp bags of heroin lying on the
          bed and dresser in that room. The stamp bags of
          heroin were labeled “new arrival” with a gold eagle
          emblem on them.

                 On April 27, 2012, text messages were located
          on the cell phone that the victim, Jeremy Brinkley,
          had been using.       Jeremy Brinkley’s father, who
          authorized the police to search that particular phone,
          owned this cell phone. Detective Charles Carr of the
          Moon Township Police Department made an
          investigation of that phone and determined that
          there were a number of text message exchanges
          between the Brinkley cell phone and the cell phone
          number of 412-[--------]. The nature of these text
          messages led him to believe that they were between
          a user who was attempting to purchase heroin and a
          supplier.   Detective Carr was authorized by the
          Office of the Attorney General to communicate
          through both oral and text messages with the
          source’s phone number and this was done on that
          date. Detective Carr contacted the source number
          and asked him if he was available, told the source
          that he was looking to get drugs and wanted to know
          if he had any. The response that came back was
          yes, that he had drugs and they were the same
          ones. Detective Carr then said he had one hundred
          eighty to two hundred dollars and they agreed to
          meet at the Motel 6 in Moon Township.
          Detective Carr went to the Motel 6 and then texted
          the source and asked where he was and the source
          responded that he was in a red pickup truck that was
          parked in the front parking lot of that Motel. The
          police approached that vehicle and removed two
          young males from the vehicle.        The driver was
          identified as Anderson Marshall and the passenger
          was identified as [appellant]. Detective Carr then


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            texted the source’s cell phone number and the phone
            rang and displayed the name of Jeremy and that
            phone was [appellant’s] phone.      [Appellant] was
            then arrested and as a result of a pat down search,
            was found to be in possession of seven hundred
            eight dollars, twenty stamp bags of heroin marked
            “new arrival” with a gold eagle emblem, and the cell
            phone that had been exchanging messages with Carr
            and Brinkley.

Trial court opinion, 2/11/16 at 4-5.

      With respect to the charge for simple assault, Julie Capone, Esq., the

Commonwealth’s     attorney,   summarized    the   evidence   it   would   have

presented had the case gone to trial:

                  Had the Commonwealth proceeded on Case
            Number 201317261, we would have called Officer
            Micah    Anthony    from  the   Pittsburgh  Police
            Department as well as Horace Durham and Frances
            Durham, who would have testified . . . that on
            December 3rd of 2013, Frances Durham, who was
            77 years old at the time, stated that she and her
            24-year-old grandson, [appellant], had gotten into
            an argument. He had believed that she had taken
            his marijuana stash.

                  [Appellant] told Mrs. Durham that he would
            hurt her, his father Horace Durham, and his uncle,
            who was not on scene. He had ripped all the phone
            cords out of the wall and picked up a television as if
            to throw it.

                  Mrs. Durham stated she was in fear at that
            time of injury.

                 Mr. Horace Durham, who was just operated on
            for lung cancer, arrived on scene with his
            one-year-old grandson, Marcus Jones, Jr., who is
            [appellant’s] son, to make sure his mother was safe.




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                   She, Frances, would have testified that she
             had called her son earlier to tell him about the
             threats that were being made. Concerned for her
             safety, they called the police.

                    While officers were searching the area because
             [appellant] had left, another call came in while the
             officers were looking for [appellant], that [appellant]
             had returned back to the scene and at this time got
             into a physical altercation with his father
             Horace Durham, knocking him to the ground as well
             as the baby that Horace Durham was holding.

                   At this point, Horace Durham reached for his
             gun and told [appellant] he was going to get his gun.
             They then started to fight over the gun. Mr. Durham
             started to lose consciousness because he was
             assaulted by [appellant] and proceeded to shoot
             [appellant] in the thigh.

                  [Appellant] left at that time and took his
             grandmother’s car and drove himself to Allegheny
             General Hospital.

                   It would be noted . . . that no one asked for
             treatment and refused treatment at the scene,
             including the infant baby.

Notes of testimony, 8/28/14 at 6-8.

     On August 28, 2014, appellant pled guilty to criminal use of a

communication facility, PWID, and simple assault.          The Commonwealth

dropped the remaining charges.

     In the written plea colloquy, appellant answered “Yes” to the following

questions:

             5.    Do you understand that if you have been
                   charged with more than one offense, the Court
                   may impose a separate, or consecutive,
                   sentence for each offense? []


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            6.     Have you discussed with your attorney the
                   elements of each charged offense? []

            7.     Have you discussed with your attorney the
                   factual basis of each charged offense? []

            8.     Have you discussed with your attorney how the
                   facts in your case prove the elements of each
                   charged offense? []

            ....

            44.    Have you and your attorney discussed the
                   maximum possible sentences which this Court
                   could impose? []

            ....

            61.    Are you satisfied with the legal advice and
                   legal representation of your attorney? []

            62.    Have you had ample opportunity to consult
                   with your attorney before entering your plea,
                   and are you satisfied that your attorney knows
                   all of the facts of your case and has had
                   enough time within which to check any
                   questions of fact or law which either you or
                   your attorney may have about this case? []

            63.    Has your attorney gone over with you the
                   meaning of the terms of this document?

Guilty Plea, explanation of defendant’s rights, 8/28/14 at 2, 8, and 10,

¶¶ 5-8, 44, and 61-63.

     At the guilty plea hearing on August 28, 2014, the trial court asked

appellant if he understood the maximum sentences that could be imposed

for each crime for which appellant pleaded guilty. Appellant answered that

he did.   Appellant responded in the affirmative when the trial court asked


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him whether he was satisfied with his representation and that his counsel

had explained to him the crimes for which he pled guilty and the elements of

those crimes. (Notes of testimony, 8/28/14 at 4.)

      At    the   sentencing   hearing,   Stuart    Brinkley,    the    father     of

Jeremy Brinkley, testified that appellant was not a friend of his son, but was

an   aggressive    drug   dealer   who    would    continually   call   and      text

Jeremy Brinkley in an effort to sell him heroin.          (Notes of testimony,

11/24/14 at 7-8.) The trial court stated that, as a result of appellant’s drug

activity, “somebody died,” and called him a “killer.” (Id. at 11-12.)

      On December 4, 2014, appellant filed a post-sentence motion. On the

same date, Brandon Herring, Esq. (Attorney Herring), moved to withdraw as

counsel.    On February 13, 2015, the trial court granted the motion to

withdraw and appointed new counsel. On March 17, 2015, appellant filed an

amended post-sentence motion. The trial court denied the motions on April

14, 2015.

      Appellant raises the following issues for this court’s review:

             1.    Whether the trial court erred and abused its
                   discretion in not granting Appellant’s motion to
                   withdraw his guilty plea because it was not
                   knowingly and voluntarily made in that his
                   counsel was ineffective and did not advise him
                   (a) that the factual basis for the plea would
                   include representations that he was the source
                   of the drugs responsible for an overdose
                   death; (b) that he had a right to file a motion
                   to suppress the evidence challenging the
                   probable cause for the felony stop/arrest; and



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                   (c) of the maximum possible penalty and
                   sentence which the court could impose?

            2.     Whether the trial court erred and abused its
                   discretion because the sentence was manifestly
                   excessive,    not   appropriate   under     the
                   Sentencing Code and contrary to the
                   fundamental norms underlying the sentencing
                   process in that it was beyond the aggravated
                   guideline range based on a finding of fact that
                   Appellant was the source of the drugs for and
                   was responsible for an overdose death which
                   was not supported by competent evidence and
                   which was against the weight of the evidence?

Appellant’s brief at 4.

      Appellant asserts that he would not have entered a plea had he known

that the factual explanation of the summary of the evidence would include

references to his presumed responsibility for the death of Jeremy Brinkley.

Appellant adds that his counsel did not advise him that the summary of the

evidence would include this information so that trial counsel was ineffective.

      With respect to whether appellant made a knowing and voluntary plea,

this court has held that “[i]n order to permit the withdrawal of a guilty plea

after sentence has been entered, there must be a showing of prejudice that

results in a manifest injustice to the defendant.”       Commonwealth v.

Vance, 546 A.2d 632, 635 (Pa.Super. 1988), appeal denied, 557 A.2d 723

(Pa. 1989), cert. denied sub nom. Vance v. Horn, 516 U.S. 1060 (1996)

(citations omitted).




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      “When reviewing a trial court’s denial of a motion to withdraw a plea of

guilty, we will not disturb the court’s decision absent an abuse of discretion.”

Commonwealth v. Miller, 748 A.2d 733, 735 (Pa.Super. 2000).

      The trial court correctly stated that the information concerning

Jeremy Brinkley and appellant’s connection to him was contained in the

affidavit attached to the original criminal complaint. Appellant should have

been aware that the factual summary would contain references to

Jeremy Brinkley’s death.    Further, to the extent appellant claims that his

trial counsel was ineffective, a petitioner must wait to raise claims of

ineffective assistance of counsel until collateral review. Commonwealth v.

Grant, 813 A.2d 726, 738 (Pa. 2002).

      Appellant next contends that he would not have entered his plea had

he been aware of and effectively advised by counsel of his right to file a

motion to suppress the evidence concerning the stop and arrest in the

parking lot of the Motel 6.          Once again, appellant challenges the

effectiveness of counsel which is properly brought in a collateral attack.

Grant.

      Appellant next contends that he would not have entered pleas to either

of the two cases had he known and been effectively advised of the maximum

possible sentence as opposed to his belief that there was a plea agreement

for both cases within the standard range of 6 to 14 months followed by a

period of probation. Appellant argues that he did not understand the trial



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court’s explanation of the maximum penalty because he believed that it did

not apply to him.

      In the written colloquy, appellant answered “yes” to the questions of

whether he understood that if the plea were accepted, the judge would still

have to sentence him on the charges for which he pled guilty and whether

he and his attorney had discussed the maximum possible sentence which the

trial court could impose.   Then, at the plea hearing, the trial court asked

appellant whether he understood the maximum sentences for the charges

for which he was pleading guilty and the maximum total possible sentence.

Appellant replied that he did.   (Notes of testimony, 8/28/14 at 2-4.)       An

appellant is constrained by the statements made during the plea colloquy

and cannot readily thwart the effect of those statements and attempt to

render the voluntary plea invalid without demonstrating manifest injustice.

See Commonwealth v. Stork, 737 A.2d 789 (Pa.Super. 1999). Appellant’s

claim that he thought that there was a plea agreement for both cases and

that his counsel failed to adequately explain the maximum sentence to him

does not constitute manifest injustice. A review of the written and oral plea

colloquies indicates that the trial court did not abuse its discretion when it

denied the motion to withdraw the plea on the basis that it was not

knowingly and voluntarily given. Once again, to the extent that appellant is

raising the issue of the ineffectiveness of his counsel, that issue is raised in

collateral review.



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      Appellant next contends that the trial court erred and abused its

discretion because the sentence was manifestly excessive, inappropriate

under the Sentencing Code, and contrary to the fundamental norms

underlying the sentencing process because it exceeded the aggravated

guideline range of 20 months and was based on an erroneous determination

that appellant was responsible for Jeremy Brinkley’s death.

            [T]he proper standard of review when considering
            whether      to    affirm    the    sentencing   court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment        exercised     was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].     An appellant challenging the



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            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                     [W]e conduct a four-part analysis to
                     determine: (1) whether appellant has
                     filed a timely notice of appeal, see
                     Pa.R.A.P. 902 and 903; (2) whether the
                     issue   was   properly   preserved    at
                     sentencing or in a motion to reconsider
                     and modify sentence, see Pa.R.Crim.P.
                     [720]; (3) whether appellant’s brief has
                     a fatal defect, Pa.R.A.P. 2119(f); and
                     (4) whether there is a substantial
                     question that the sentence appealed
                     from is not appropriate under the
                     Sentencing     Code,    42     Pa.C.S.A.
                     § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

      Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging his sentence.

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902

and 903. Second, appellant raises the issue that the trial court erred and

abused its discretion when it sentenced appellant beyond the aggravated

guideline range on the basis that appellant was responsible for the death of

Jeremy Brinkley. A review of appellant’s post-trial motions reveals that he

raised this issue.

      Third, appellant included a Rule 2119(f) statement in his brief in which

he avers:

            [T]he trial court sentenced Appellant beyond the
            aggravated guideline range of 20 months based on
            findings of facts which are contrary to the weight of
            the competent evidence of record and which would


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            have required additional charges and a conviction or
            plea thereto before same could properly apply as a
            basis   for  Appellant’s   sentencing   under    the
            Sentencing Code, 42 Pa.C.S.[A.] § 9732 and § 9752.
            This constitutes a colorable argument that the
            sentencing judge’s actions were also contrary to the
            fundamental norms underlying the sentencing
            process – whereby sentencing is based on the crimes
            pled to and prior convictions, but not crimes which
            were never charged or proven.”

Appellant’s brief at 8.

      A claim that a trial court relied on an improper factor when levying a

sentence constitutes a substantial question.          See Commonwealth v.

Downing, 990 A.2d 778, 782 (Pa.Super. 2010). We, therefore, will address

his appeal on the merits.

      At the sentencing hearing, the trial court explained its sentencing

decision:

            [Appellant], I’ve read the presentence report, and
            that’s probably to your detriment. I note that there
            is currently a pending charge filed against you where
            1,055 stamp bags of heroin were found together with
            a .380 pistol, also details your prior history through
            juvenile court and as an adult, the fact that your
            [sic] running around with a firearm got you shot, you
            threaten people, and, as a result of your drug
            activity, somebody died.

                  You just told me you have no remorse for that,
            and that’s a shame because you are a drug dealer
            and a killer.

Notes of testimony, 11/24/12 at 11-12.

      In its opinion, the trial court further explained its decision:




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            Pursuant to the provisions of the Sentencing Code, if
            any individual sentence is entitled to have an
            individualized sentence, the Court is required to
            consider the impact of the crime on the victim, the
            safety of the public and the defendant’s rehabilitative
            needs. This Court ordered a presentence report and
            that   report    revealed    [appellant’s]  continued
            involvement in the criminal justice system, beginning
            with adjudications in Juvenile Court and his
            convictions as an adult. Almost all of his cases
            involve drugs and the rest of his cases also have the
            gun as part of their factual pattern. As detailed
            previously, the facts of [appellant’s] case clearly
            indicated that he was a drug dealer and that he had
            sold the fatal drugs to one of his users and that he
            was in possession of the same batch of drugs labeled
            “new arrival” with gold eagle emblem, and in fact,
            texted the police that he had the same batch of
            drugs as previously sold to the deceased victim.
            This Court considered the impact upon the victim
            and the impact upon the community in addition to
            what would be [appellant’s] rehabilitative needs.
            [Appellant] had numerous opportunities in the
            Juvenile Court system and adult system to cease his
            criminal activity but those periods of probation did
            not deter [appellant] from continuing his drug
            dealing. The impact upon the victim is obvious since
            Brinkley died as a result of the heroin that was sold
            to him. The impact upon the community is also
            readily apparent since [appellant] was in possession
            of a potentially fatal quantity of heroin.         The
            sentence imposed upon [appellant] took into
            consideration all of the factors of the Sentencing
            Code and was an appropriate sentence.

Trial court opinion, 2/11/16 at 8-9.

                  Where the sentencing court had the benefit of
            a presentence investigation report (“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.” Commonwealth v. Devers, 519
            Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also


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             Commonwealth v. Tirado, 870 A.2d 362, 368
             (Pa.Super. 2005) (stating if sentencing court has
             benefit of PSI, law expects court was aware of
             relevant information regarding defendant’s character
             and weighed those considerations along with any
             mitigating factors).

Moury, 992 A.2d at 171.

      Here, the trial court acknowledged that it had read the pre-sentence

investigation report, so it is presumed that it considered all relevant factors.

Further, at the plea hearing, Rachel Newman (“Attorney Newman”), attorney

for the Commonwealth, described the evidence that would be presented by

the Commonwealth regarding the connection between Jeremy Brinkley and

appellant.

      After Attorney Newman’s statement, the trial court asked Attorney

Herring, if he had any additions or corrections. Attorney Herring answered,

“No, Your Honor.”    (Notes of testimony, 8/28/14 at 11.)      The information

that Jeremy Brinkley died as the result of heroin purchased from appellant

was presented to the trial court. The trial court did not abuse its discretion

when it considered the circumstances of Jeremy Brinkley’s death when it

fashioned the sentence for appellant.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/26/2016




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