J-S32013-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

KHALIL LEE,

                        Appellant                  No. 2827 EDA 2015


          Appeal from the Judgment of Sentence August 24, 2015
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0003286-2015



BEFORE: BOWES, MUNDY AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 22, 2016

     Khalil Lee appeals from a judgment of sentence of three to twenty-

three months imprisonment followed by one year probation. Sentence was

imposed after Appellant entered a negotiated guilty plea to one count of

robbery graded as a third-degree felony.    Counsel has filed a petition to

withdraw from representation and a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We grant counsel’s petition to withdraw and affirm.

     We garner the facts from the affidavit of probable cause supporting the

complaint as those facts were incorporated into the guilty plea proceedings

in support of the factual basis for Appellant’s plea. At approximately 11:15

p.m. on March 17, 2015, Detective Donald Caber of the Southeastern

* Retired Senior Judge assigned to the Superior Court.
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Pennsylvania Transportation Authority (“SEPTA”) Transit Police Department

observed Appellant in an altercation with another male just outside of the

men’s restroom of a SEPTA terminal. The other man was referred to as “BG”

in the affidavit. Affidavit of Probable Cause, 4/9/15, at 1. Detective Caber

cited both men for disorderly conduct.

      The next day, Detective Caber reviewed a videotape of the incident,

and it revealed that Appellant exited the terminal restroom, spoke with BG,

and then punched BG in the face.       At that point, “they wrestle[d] to the

ground” while Appellant continued “to punch the complainant, BG.”         Id.

Detective Caber interviewed BG on April 7, 2015, and BG explained that

Appellant had demanded BG’s cell telephone and that BG refused to

relinquish it.   At that point, Appellant punched the victim in the face, and

they began to struggle on the ground before being interrupted by Detective

Caber.

      The disorderly conduct citation was rescinded, and Appellant was

charged in this criminal action with robbery, attempted theft, simple assault,

reckless endangerment, and disorderly conduct.        On August 24, 2015,

Appellant entered a negotiated guilty plea to a single count of robbery, the

remaining charges were dismissed, and the agreed-upon sentence was to be

three to twenty-three months in jail followed by one year of probation.

During the guilty plea hearing, the trial court conducted the mandated

colloquy with Appellant and approved of the plea arrangement. Additionally,

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Appellant completed a written guilty plea statement.          The plea court

accepted the guilty plea and sentenced Appellant in accordance with its

negotiated terms. On September 22, 2015, Appellant filed a timely notice of

appeal. Thereafter, counsel for Appellant moved to withdraw and filed the

requisite Anders brief.

      Since we do not consider the merits of an issue raised in an Anders

brief without first reviewing a request to withdraw, we now address counsel’s

petition to withdraw.     Commonwealth v. Cartrette, 83 A.3d 1030

(Pa.Super. 2013) (en banc). In order to be permitted to withdraw, counsel

must meet three procedural requirements: 1) petition for leave to withdraw

and state that, after making a conscientious examination of the record,

counsel has concluded that the appeal is frivolous; 2) provide a copy of the

Anders brief to the defendant; and 3) inform the defendant that he has the

right to retain private counsel or raise, pro se, additional arguments that the

defendant deems worthy of the court’s attention. Id.

      Counsel’s petition to withdraw states that he thoroughly reviewed the

entire case and found no issues that might be raised on appeal,        and he

averred that this appeal was wholly frivolous.     A copy of the petition to

withdraw and the Anders brief was furnished to Appellant.             Counsel

therefore forwarded to this Court a copy of his letter to Appellant, wherein

he informed Appellant that he was withdrawing based upon a conclusion that

this appeal is frivolous. Further, counsel instructed Appellant that he could

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hire another attorney or submit a brief on his own behalf.               Accordingly,

counsel has complied with the procedural aspects of Anders.

        We   next   examine   whether    counsel’s      Anders   brief   meets   the

substantive elements of Santiago. Pursuant to Santiago, an Anders brief

must:

        (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.

Santiago, supra at 361.

        Counsel’s brief is compliant with Santiago.          It contains a short

summary of the procedure and facts and delineates the applicable law.

Counsel establishes that the trial court’s colloquy was proper under that

precedent, and delineate how the one issue that might arguably support this

appeal is wholly frivolous under the law. Hence, we now proceed to examine

the issue in question: “Whether [Appellant] entered a knowing, voluntary[,]

and intelligent guilty plea?” Appellant’s brief at 1.

        This averment concerns the following. When asked by the plea court,

Appellant stated he suffered from a mental disability.               However, his

successive responses confirmed that the disability did not affect his ability to

enter a knowing and voluntary guilty plea and that it did not impact his



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ability to understand the proceedings. Counsel notes that Appellant had an

affirmative duty to truthfully respond to the judge’s inquiries, and that a

guilty plea may not be withdrawn based upon an assertion that contradicts

statements made during the course of a guilty plea.

      At the outset, we observe, as did Appellant’s counsel, that Appellant

did not object to his guilty plea at the colloquy nor did he file a timely

motion to withdraw the plea. As a result, his challenge to the validity of his

guilty plea is waived. Commonwealth v. Lincoln, 72 A.3d 606, 609-10

(Pa.Super. 2013).    Moreover, even if we were to assume that Appellant’s

present claim is not waived, it fails on the merits.

      Pennsylvania law requires that a guilty plea be made knowingly,

voluntarily, and intelligently. Commonwealth v. Rush, 909 A.2d 805

(Pa.Super. 2006). As such, we are subject to the following guidelines when

determining the validity of a guilty plea:

          In order for a guilty plea to be constitutionally valid, the
      guilty plea colloquy must affirmatively show that the defendant
      understood what the plea connoted and its consequences. This
      determination is to be made by examining the totality of the
      circumstances surrounding the entry of the plea. A plea of guilty
      will not be deemed invalid if the circumstances surrounding the
      entry of the plea disclose that the defendant had a full
      understanding of the nature and consequences of his plea and
      that he knowingly and voluntarily decided to enter the plea.

Id. at 808 (quoting Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa.

Super. 1993). In order for a judge to accept a guilty plea, there must first

be an oral colloquy of the defendant which appears on the record.


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Pa.R.Crim.P. 590(A)(3). In the case sub judice, the plea court satisfied the

rule’s requirements.     There was an issue regarding a mental disability

suffered by Appellant. In this regard, the following exchange occurred:

     The Court: Sir, how old are you today?

     [Appellant]: 36.

     The Court: How far did you go in school?

     [Appellant]: 12th grade.

     The Court: Read, write and understand English?

     [Appellant]: Yes.

     The Court: Suffer from any mental disability?

     [Appellant]: Yes.

     The Court: Does it affect your ability to understand today’s
     proceedings?

     [Appellant]: No, it doesn’t.

     ....

     The Court: Okay. Now, Mr. Lee, it’s your decision to enter the
     plea. It’s not [counsel’s], is that correct?

     [Appellant]: Correct.

     The Court: And you again make that knowingly and voluntarily?

     [Appellant]: Yes.

     The Court: And now intelligently?

     [Appellant]: Yes, Your Honor.

     The Court: Is that correct?

     [Appellant]: Yes, sir.

     The Court: All right. Did anybody threaten you or promise you
     anything for the plea?


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      [Appellant]: No.

      The Court: All right. [Counsel], are you satisfied his entry to the
      plea is knowing, intelligent and voluntary?

      [Counsel]: Yes, Your Honor.

N.T., 8/24/15, at 4, 12.      Our review of the plea colloquy confirms that

Appellant appropriately responded to all questioning and evidenced an

understanding of the proceedings.

      The law is clear that a defendant has an affirmative duty to truthfully

respond to a judge’s questions during a guilty plea colloquy.      As we have

stated:

            The longstanding rule of Pennsylvania law is that a
      defendant may not challenge his guilty plea by asserting that he
      lied while under oath, even if he avers that counsel induced the
      lies. 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.

            A criminal defendant who elects to plead guilty has a duty
      to answer questions truthfully. We [cannot] permit a defendant
      to postpone the final disposition of his case by lying to the court
      and later alleging that his lies were induced by the prompting of
      counsel.

Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007)

(citations omitted).     Thus, Appellant is bound by the statements that he

made at the plea hearing that his mental disability did not affect his ability

to understand the plea proceedings and that he was entering his guilty plea

voluntarily and knowingly.     He thereafter cannot withdraw his guilty plea

premised upon a mental infirmity rendering the plea invalid.

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      We have conducted an independent review of the certified record, as

required by Commonwealth v. Flowers, 113 A.3d 1246 (Pa.Super. 2015).

It confirms that there are no other non-frivolous issues that can be raised in

this appeal.

      Petition of Patrick J. Connors, Esquire, to withdraw as counsel is

granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




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