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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                          :
LAURENCE SIGECAN,                         :        No. 819 WDA 2015
                                          :
                        Appellant         :


           Appeal from the Judgment of Sentence, April 7, 2015,
            in the Court of Common Pleas of Allegheny County
            Criminal Division at Nos. CP-02-CR-0010683-2014,
                         CP-02-CR-0015850-2014


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 15, 2016

      Laurence Sigecan appeals the judgment of sentence entered by the

Court of Common Pleas of Allegheny County that sentenced him to an

aggregate term of three years’ probation following his nolo contendere

plea to terroristic threats with intent to terrorize another, resisting arrest,

making a false report, tampering with or fabricating physical evidence, and

obstructing the administration of law.1

      On May 14, 2014, the Shaler Police Department contacted the Green

Tree Borough Police Department (“Department”) and asked for assistance in

the service of a warrant on appellant who resided at 48 Robinhood Road in



1
 18 Pa.C.S.A. § 2706(a)(1), 18 Pa.C.S.A. § 5104, 18 Pa.C.S.A. § 4906(a),
18 Pa.C.S.A. § 4910(1), and 18 Pa.C.S.A. § 5101, respectively.
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Green Tree. Lieutenant Rannigan (“Lt. Rannigan”) of the Department went

to appellant’s residence. Lt. Rannigan informed appellant of the outstanding

arrest warrant and placed appellant in custody. When appellant was taken

outside his residence, he became rigid, gritted his teeth, and stared at

Lt. Rannigan. Appellant “chest bumped” Lieutenant Rannigan and began to

push him with his body. Appellant resisted Lt. Rannigan’s efforts to get him

in the police car. Appellant started shouting profanities at Lt. Rannigan and

told him that once he got the handcuffs off, he “was going to get him.”

(Nolo contendere plea/sentencing hearing, 4/7/15 at 3-4.)

     On June 11, 2014, appellant entered the Department in order to file a

criminal complaint against Lt. Rannigan. Appellant alleged that Lt. Rannigan

assaulted him on the day of the arrest.    Appellant gave Department Chief

Downey photographs of his injuries allegedly caused by Lt. Rannigan.

Appellant asserted that Lt. Rannigan threw him to the ground while

appellant was handcuffed and then stomped on his back and his handcuffs

which caused injuries.   On June 23, 2014, appellant submitted a written

complaint to the Department and requested an investigation. (Id. at 6-7.)

     Chief Downey’s investigation included a viewing of video footage from

the Allegheny County Jail on May 15, 2014, the night of the arrest, which

showed appellant removing a credit card from his pocket and then cutting

his wrist with a slicing motion which allegedly caused the injury depicted in

the photographs. (Id. at 7.)



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       On October 15, 2014, Allegheny County Detective James Smith

(“Detective Smith”) interviewed appellant who showed Detective Smith the

same photographs that he presented to Chief Downey.                 When confronted

with the video from the county jail, appellant changed his story and stated

that Lt. Rannigan did not throw him to the ground and did not stomp on his

back or his wrists when the handcuffs were on.               He also denied cutting

himself with the credit card. (Id. at 7-8.)

       Appellant   was       charged   with    aggravated   assault    (18    Pa.C.S.A.

§ 2702(a)(3)), terroristic threats, resisting arrest, harassment (18 Pa.C.S.A.

§ 2709(a)(1)), and disorderly conduct (18 Pa.C.S.A. § 5503(a)(1)) for the

incident with Lt. Rannigan. He was also charged with false reports to law

enforcement, tampering with/fabricating physical evidence, and obstructing

administration of law.

       On April 7, 2015, appellant entered a negotiated nolo contendere

plea    to     terroristic      threats,      resisting   arrest,     false    reports,

tampering/fabricating physical evidence, and obstructing administration of

law for a probationary sentence.                 The Commonwealth dropped the

aggravated assault charge.          For the harassment and disorderly conduct

charges, appellant was determined to be guilty without further penalty.

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

questions:

             6.    Have you discussed with your attorney the
                   elements for each charged offense?


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            ....

            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?

Nolo contendere, explanation of defendant’s rights, 4/7/15 at 2 and 7, ¶¶

6-8, and 44.

      At the nolo contendere plea/sentencing hearing on April 7, 2015, the

trial court asked appellant and his counsel the following questions:

            The Court: Are you clearheaded today, sir?

            The Defendant: Yes, sir.

            The Court: Have you had enough time to speak with
            your attorney about the elements of each crime to
            which you are pleading no contest, the nature of the
            no-contest plea and your right to have a trial?

            The Defendant: Yes, sir.

            The Court: Are you satisfied with his representation?
            The Defendant: Absolutely.

            ....

            The Court: I have in front of me a Guilty [sic] plea
            colloquy. It bears your signature as well as that of


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              your attorney.   Did you read and understand each
              question?

              The Defendant: Yes, sir.

              The Court: Did you answer each question honestly?

              The Defendant: Yes, sir.

              The Court: Was your attorney available in the event
              you had any questions about this document or any
              matter related to this case?

              The Defendant: Yes, sir.

              The Court: Mr. Bishop,[2] based on your experience
              and contact with your client, do you believe he
              understands the elements of each crime, the
              maximum penalties allowed by law, and that he is
              otherwise making a knowing, intelligent and
              voluntary decision to plead guilty [sic]?

              Mr. Bishop: Yes, Your Honor.

Nolo contendere plea/sentencing hearing, 4/7/15 at 3-4.

        The trial court accepted the plea.

        On April 17, 2015, appellant moved to withdraw his nolo contendere

plea:

              6.    Mr. Sigecan avers that he did not have
                    sufficient time to consider and evaluate his
                    options prior to entering his pleas on April 7,
                    2015. Specifically, he avers that he did not
                    have sufficient time to fully understand the
                    consequences of a plea of nolo contendere
                    and felt pressured by Trial Counsel to enter the
                    pleas.



2
    Adam Bishop, Esq., served as appellant’s plea counsel.


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           7.    Mr. Sigecan instructed Trial Counsel to file this
                 timely Motion to Withdraw Nolo Contendere
                 Pleas, asserting that his pleas were not
                 knowingly, intelligently, or voluntarily made.

           8.    Accordingly, Mr. Sigecan respectfully requests
                 this Honorable Court allow him to withdraw his
                 pleas   of    nolo    contendere      at   the
                 above-captioned cases.

Motion to withdraw nolo contendere pleas, 4/17/15 at 2, ¶¶ 6-8.

     On April 24, 2015, the trial court denied the motion to withdraw the

nolo contendere plea. The trial court reasoned:

           Here, the Trial Court determined that the totality of
           the circumstances demonstrated that Appellant’s
           plea was knowingly, intelligently, and voluntarily
           entered into, to wit: (1) Appellant completed a
           written and oral plea colloquy; [] (2) Appellant
           stated that he read and understood each question in
           the written colloquy, and answered each question
           honestly; (3) the Commonwealth placed the
           negotiated plea agreements on the record and
           Appellant    acknowledged     that   that   was     his
           understanding of the agreement; (4) Appellant
           benefited from the plea agreement by the withdrawal
           of the aggravated assault charge and the agreement
           to a sentence of probation; (5) Appellant stated that
           he was clear-headed, he had enough time to speak
           with his attorney about the elements of each crime
           to which he was pleading no contest, and that he
           was not threatened or promised anything to force
           him to plead no contest; (6) Appellant’s attorney
           stated that based on his communication with
           Appellant, he believed that Appellant understood the
           elements of the crimes, the maximum penalties
           allowed by law, and that he was making a knowing,
           voluntary, and intelligent plea of no contest;
           (7) Appellant apologized for wasting the court’s time;
           and (8) Appellant was sentenced to probation that
           same day. (Plea Transcript, pp. 2-4, 6, 8-9).



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            It was only after sentencing that Appellant sought to
            withdraw his plea. Appellant’s disappointment with
            the sentence does not amount to manifest injustice,
            and appellant cannot now say that he lied under oath
            during the written and oral colloquy. Given the
            totality of the circumstances, it is clear that
            Appellant was advised by counsel of the elements of
            each crime, and the maximum penalties allowed by
            law. The Trial Court properly found that Appellant
            entered into a voluntary, knowing, and intelligent
            plea. See Commonwealth v. Stork, 737 A.2d 789,
            790-792 (Pa.Super. 1999) (affirming denial of
            motion to withdraw plea because defendant failed to
            establish manifest injustice and plea was voluntary
            and knowing based on the totality of the
            circumstances).

            This claim is without merit.

Trial court opinion, 11/17/15 at 7-9.

      Appellant raises the following issue before this court:

            Did the plea court err in not permitting Mr. Sigecan
            to withdraw his nolo contendere plea in that his plea
            was not entered knowingly and voluntarily when he
            was unaware and did not fully understand the nature
            of the charges to which he was pleading when the
            court specifically failed to advise him of all legal
            elements of the alleged crimes or to inform him of
            maximum and minimum penalties which was a
            manifest injustice?

Appellant’s brief at 5 (capitalization omitted).

      “In terms of its effect upon a case, a plea of nolo contendere is

treated the same as a guilty plea.”      Commonwealth v. Miller, 748 A.2d

733, 735 (Pa.Super. 2000), citing Commonwealth v. Boatwright, 590

A.2d 15, 19 (Pa.Super. 1991).       A defendant must demonstrate manifest

injustice in order to prevail on a post-sentence motion to withdraw a plea of


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nolo contendere.           Commonwealth v. Jefferson, 777 A.2d 1104, 1107

(Pa.Super. 2001). A defendant can establish manifest injustice by showing

that he or she did not voluntarily tender the plea.                Id.    However,

disappointment by a defendant in the sentence imposed does not constitute

manifest injustice.        Commonwealth v. Muhammad, 794 A.2d 378, 383

(Pa.Super. 2002).

      Rule   590      of    the   Pennsylvania   Rules   of   Criminal   Procedure,

Pa.R.Crim.P. 590 provides in pertinent part:

             Rule 590. Pleas and Plea Agreement.

             ....
             (B) PLEA AGREEMENTS.

                   (1)       When counsel for both sides have arrived
                             at a plea agreement, they shall state on
                             the record in open court, in the presence
                             of the defendant, the terms of the
                             agreement, unless the judge orders, for
                             good cause shown and with the consent
                             of the defendant, counsel for the
                             defendant, and the attorney for the
                             Commonwealth, that specific conditions
                             in the agreement be placed on the record
                             in camera and the record sealed.

                   (2)       The judge shall conduct a separate
                             inquiry of the defendant on the record to
                             determine     whether    the   defendant
                             understands and voluntarily accepts the
                             terms of the plea agreement on which
                             the guilty plea or plea of nolo
                             contendere is based.




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     When a trial court determines whether a plea of nolo contendere was

tendered knowingly and voluntarily, the trial judge must ascertain the

answers to the following questions:

           (1)   Does the defendant understand the nature of
                 the charges to which he or she is pleading
                 guilty or nolo contendere?

           (2)   Is there a factual basis for the plea?

           (3)   Does the defendant understand that he or she
                 has the right to trial by jury?

           (4)   Does the defendant understand that he or she
                 is presumed innocent until found guilty?

           (5)   Is the defendant aware of the permissible
                 range of sentences and/or fines for the
                 offenses charged?

           (6)   Is the defendant aware that the judge is not
                 bound by the terms of any plea agreement
                 tendered unless the judge accepts such
                 agreement?

Pa.R.Crim.P. 590, Comment; Jefferson, 777 A.2d at 1107.           A court must

examine the totality of the circumstances to determine whether a defendant

voluntarily entered into a plea. Commonwealth v. Allen, 732 A.2d 582,

588-589 (Pa. 1999). “When reviewing a trial court’s denial of a motion to

withdraw a plea of [nolo contendere], we will not disturb the court’s

decision absent an abuse of discretion.” Miller, 748 A.2d at 735.

           “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.”           Commonwealth v.
           Broadwater, 330 Pa.Super. 234, 244, 479 A.2d


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            526, 532 (1984). This determination is to be made
            “by examining the totality of the circumstances
            surrounding the entry of the plea.” Id. Thus, even
            though there is an omission or defect in the guilty
            plea colloquy, a plea of guilty will not be deemed
            invalid if the circumstances surrounding the entry of
            the plea disclose that this defendant had a full
            understanding of the nature and consequences of his
            plea and that he knowingly and voluntarily decided
            to enter the plea.

Commonwealth v. Fluharty, 632 A.2d 312, 314-315 (Pa.Super. 1993)

(additional citations omitted).

      In Commonwealth v. Morrison, 878 A.2d 102, 108 (Pa.Super.

2005), this court stated, “To summarize, whether a defendant is aware of

the nature of the offenses depends on the totality of the circumstances and

a plea will not be invalidated premised solely on the plea court’s failure to

outline the elements of the crime at the oral colloquy.”

      Appellant contends that the trial court failed to provide him with an

understanding of the charges against him because it did not explain to him

the elements of the offenses for which he was charged. He asserts that in

order to demonstrate his understanding of the charges, the record must

reflect that the elements of the crimes were explained to him in

understandable terms.

      Appellant also asserts that the written colloquy could not be accepted

as sufficient to apprise him of the nature of the charges against him because

the form was a generic one that contained no specific information concerning

his particular situation.


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       It is undisputed that the trial court did not outline the elements of the

crimes to appellant orally at the hearing.       However, when the trial court

questioned him as to whether he had had time to speak with his attorney

concerning the elements of each crime, appellant replied that he had.        He

further answered that he was “absolutely” satisfied with his counsel’s

representation.    The trial court also asked him whether he read and

understood each question in the written colloquy and whether his attorney

had been available in the event he had any questions regarding the written

colloquy. Appellant answered “yes” to both questions. The trial court also

questioned his attorney as to whether appellant understood the elements of

each    crime,    and    his   attorney       answered   in   the   affirmative.

(Nolo contendere plea/sentencing hearing, 4/7/15 at 3-4.)

       Further, in the written colloquy, appellant answered “yes” in response

to the questions as to whether he had discussed the elements of each

charged offense with his attorney and whether his attorney had discussed

with him how the facts in the case proved the elements of each charged

offense as well as whether his attorney discussed sentencing options.3

Given appellant’s written answers on the plea colloquy and his statements in

open court, it appears that he understood the nature of the plea bargain, the

consequences of his plea, the factual evidence which would lead to verdict of



3
  At the hearing, the Commonwealth outlined the facts of the case which
appellant did not dispute.


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guilty, as well as the elements of the crimes for which he was charged.

Based on the totality of circumstances, this court is satisfied that there was

no manifest injustice that resulted in a plea that was involuntary or

unknowing even though the trial court did not explain the elements of the

crimes to appellant. See Morrison, 878 A.2d at 108.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/15/2016




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