J-S36030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KYLE MATHIS                                :
                                               :
                       Appellant               :   No. 3332 EDA 2017

              Appeal from the Judgment of Sentence July 17, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0012453-2015


BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY DUBOW, J.:                           FILED SEPTEMBER 26, 2018

        Appellant, Kyle Mathis, appeals from the July 17, 2017 Judgment of

Sentence entered in the Philadelphia County Court of Common Pleas following

his guilty pleas to one count each of Third-Degree Murder, Possessing

Instruments of Crime, Firearms Not to be Carried Without a License, and

Carrying Firearms in Public.1 Appellant’s counsel has filed an Anders2 Brief,

together with a Petition to Withdraw as Counsel.         After careful review, we

affirm Appellant’s Judgment of Sentence and grant counsel’s Petition to

Withdraw.

        The facts are, briefly, as follows.    On July 25, 2015, Appellant killed

Darrin Ward, Jr., by shooting him multiple times in broad daylight, on a
____________________________________________


118 Pa.C.S. § 2502(c); 18 Pa.C.S. § 907; 18 Pa.C.S. § 6106; and 18 Pa.C.S.
§ 6108, respectively.

2   Anders v. California, 386 U.S. 738 (1967).
J-S36030-18



residential street where numerous eyewitnesses were sitting outside.          The

shooting was in retaliation for the shooting of Appellant’s uncle by a close

associate of Ward.

        Police arrested Appellant on August 26, 2015, in connection with a

separate Attempted Murder. During the course of their investigation of that

crime, ballistics experts matched shell casings from both crimes.          Police

subsequently arrested Appellant and charged him with the instant crimes.

        On July 17, 2017, Appellant entered a negotiated guilty plea to the

above-referenced charges. That same day, the court sentenced Appellant to

the negotiated aggregate term of 28 ½ years’ to 57 years’ incarceration.3

        On July 25, 2017, Appellant filed a counseled Motion to Withdraw Guilty

Plea.    Appellant’s Motion consisted of three enumerated paragraphs that

stated only the date of his conviction, the length of the sentence the court

imposed, and a bald assertion that he would like the court to permit him to

withdraw his guilty plea. See Motion, 7/25/17, at 1 (unpaginated). Appellant

did not allege any grounds to support his withdrawal request. See id.

        The trial court denied Appellant’s Motion without a hearing on July 27,

2017.

        This appeal followed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

____________________________________________


3 The court ordered Appellant to serve this sentence concurrently with a
sentence of 7 to 8 years’ incarceration that he is currently serving in a separate
case for convictions of Attempted Murder and firearms offenses.

                                           -2-
J-S36030-18



      On January 23, 2018, counsel filed the Anders Brief and Petition to

Withdraw as Counsel. Appellant did not file a pro se or counselled response

to either the Brief or the Petition.

      As a preliminary matter, we address counsel’s Petition to Withdraw.

“When presented with an Anders brief, this Court may not review the merits

of the underlying issues without first passing on the request to withdraw.”

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citation

omitted).   In order for counsel to withdraw from an appeal pursuant to

Anders, our Supreme Court has determined that counsel must meet certain

requirements, including:

      (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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      In the instant case, counsel has complied with all of the requirements

of Anders as articulated in Santiago. Additionally, counsel confirms that he

sent Appellant a copy of the Anders Brief, as well as a letter explaining to

Appellant that he has the right to proceed pro se or the right to retain new

counsel. See Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super



                                       -3-
J-S36030-18



2005) (describing notice requirements). Counsel appended a copy of the letter

to his Petition to Withdraw.

      Once counsel has satisfied the above requirements, it is then this Court’s

duty to conduct an independent review of the record to discern if there are

any additional, non-frivolous issues overlooked by counsel and render an

independent judgment as to whether the appeal is, in fact, wholly frivolous.

See Commonwealth v. Yorgey, ___ A.3d ___, 2018 PA Super 136, *5 (Pa.

Super. filed May 24, 2018) (en banc) (noting that Anders requires the

reviewing court to “review ‘the case’ as presented in the entire record with

consideration first of issues raised by counsel.”).

      Counsel raises the following issue in the Anders Brief:

      Did the lower court err in denying [A]ppellant’s Motion to
      Withdraw his guilty plea?

Anders Brief at 3.

      The Honorable Rose Marie DeFino-Nastasi, who presided at Appellant’s

plea hearing, has authored a comprehensive and well-reasoned Opinion, citing

to the record and case law in addressing Appellant’s claim on appeal. After a

careful review of Appellant’s arguments and the record, we affirm on the basis

of the trial court’s Opinion, which concluded that (1) Appellant’s failure to

support his request to withdraw his guilty plea with any facts or reasons was

a sufficient basis to deny his Motion to Withdraw Guilty Plea; and (2) even if

Appellant had alleged that he entered his plea involuntarily, the record belies

that claim because (a) the court addressed all of the required factors at


                                      -4-
J-S36030-18



Appellant’s plea colloquy; (b) Appellant received the benefit of his bargain;

and (c) Appellant exercised his right to allocute during which he expressed his

remorse and reaffirmed his guilt. See Trial Ct. Op., 10/31/17, at 4-6.

      Accordingly, we agree with counsel and conclude that the issue raised

in the Anders Brief is wholly frivolous. Furthermore, our independent review

of the record confirms counsel’s assertion that Appellant cannot raise any non-

frivolous issues in this appeal. See Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super 2015) (requiring this Court to independently review

the record to ensure that counsel has not overlooked any additional non-

frivolous issues). Thus, we grant counsel’s Petition to Withdraw and affirm

Appellant’s Judgment of Sentence. The parties are instructed to attach a copy

of the trial court’s October 31, 2017 Opinion to all future filings.

      Judgment of Sentence affirmed. Petition to Withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/18




                                      -5-
0027_Opinion
                                                                                                               Circulated 08/28/2018 12:03 PM

                                                                                                                                            FILED

                                                                                                                                            3 I 2017
                                                                                                                                        7
                                     IN THE COURT OF COMMON PLEAS OF PHILADELPHIA                                                 nr-
                                                                                                                           Dffir.e Jt J11mc1al Records
                                                         CRIMINAL TRIAL DIVISION                                              ,..,,�1Jt:,a.1stPost TriaJ

               COMMONWEAL TH OF PENNSYL Y ANIA                                                    CP-5 l-CR-0012453-2015

                                v.                                                                3332 EDA 2017

               KYLE MATHIS                                                                '. --   -   -------
                                                                                           CP-51-CR-0012453-2015 Comm
                                                                                                                            -·
                                                                                                                        v Mathis Kyle
                                                                                                            Opinion




                                                                      OPINION         I
                                                                                              IIIIIIIIII I I I 111111111111
                                                                                                    8023335081
               Rose Marie DeFmo-Nastasi, J.

                                                           PROCEDURAL HISTORY

                       On July 17, 2017, Defendant entered into a negotiated plea agreement, pleading guilty to

               Thud Degree Murder, 18 Pa.C.S. § 2502(c), as a felony of the first degree; Violation of the

               Uniform Firearms Act (Firearms Not to be Carned Without a License), 18 Pa.C.S. § 6106, as a

               felony of the third degree, Violation of the Um form Firearms Act (Carrying Firearms in Public),

               18 Pa.C.S. § 6108, as a misdemeanor of the first degree; and Possession of an Instrument of

               Crime (PIC), 18 Pa.C.S § 907, as a misdemeanor of the first degree. The same day, Defendant

               was sentenced to twenty (20) to forty ( 40) years confinement for the Thud Degree Murder

               conviction, three-and-a-half (3 .5) to seven (7) years confinement for the VUF A 6106 conviction,

               two-and-a-half (2.5) to five (5) years confinement for the VUF A 6108 conviction, and two-and-

               a-half (2 5) to five (5) years confinement for the PIC conviction. All sentences were ordered to

               run consecutively makmg Defendant's aggregate sentence twenty-eight-and-a-half (28.5) to

               fifty-seven (57) years confinement.1




               I
                 The sentence for the Third Degree Murder conviction m this case was ordered to run concurrently to a seven (7) to
               eighteen (18) year sentence Defendant is serving on a separate case (CP-5l-CR-0009922-2015) for a conviction for
               Attempted Murder, VUFA 6106, and VUFA 6108
       On July 25, 2017, Defendant filed a timely Motion to Withdraw his Guilty Plea without

stating any reasons as to why he wanted to do so.

       On July 27, 2017, this Court denied Defendant's Motion to Withdraw his Guilty Plea

without a hearing.

       On August 21, 2017, Defendant filed a timely Notice of Appeal to the Pennsylvania

Superior Court.

       On October 6, 2017, Defendant filed a Rule l 925(b) Statement of Matters Complained of

on Appeal, pursuant to an Order of the Court. His claim is as follows:

       I.      The lower court erred and abused its discretion by denying Defendant's Motion to

               Withdraw his Guilty Plea.

                                             FACTS

       On July 25, 2015 at 12:56 p.m. the Defendant, Kyle Mathis, killed the decedent, Darrin

Ward, Jr., by shooting him multiple times with a gun at 515 East Hill Creek Dnve in

Philadelphia, Pennsylvania. The shooting was in broad daylight, on a residential street, where

numerous eyewitnesses were sitting outside. The shooting was in retaliation for the shooting of

the Defendant's uncle by Stephan Brooks. The decedent was a close associate of Stephan

Brooks. Brooks was present on the scene but entered a house at the time of the shooting N.T.

07/17/17 at p. 26, 30.

       The decedent was walking down East Hill Creek Drive when the Defendant called him

over. After a brief conversation, the decedent told the Defendant that he did not have anything to

do with what he was talking about. The Defendant then pushed the decedent and began shooting

at him, saying "you know what this is for." The decedent was then taken to Albert Einstein

Hospital and pronounced dead at 3:45 p.m. Id



                                                    2
         Fourteen (14) fired 9mm cartridge casings (hereinafter referred to as FCC's) and three (3)

9mm bullets were found by police at the scene. Five (5) more 9mm bullets were recovered from

the body of the decedent at the hospital. Id at pp. 26-27.

         Dr. Victoria Sorokm, a qualified expert in the field of forensic pathology, identified

nineteen (19) bullet entrance wounds on the decedent's body but noted that some of the entrance

wounds may have been re-entry wounds from other parts of his body (i.e. from the arm to the

torso). Dr. Sorokin confirmed that the cause of death was multiple gunshot wounds and the

manner of death was homicide. Id at pp. 27-28.

         The Defendant was arrested on August 26, 2015 for a separate attempted murder that

took place in the 22nd Pohce Distnct in North Philadelphia. Nineteen (19) 9mm FCC's and one

(1) 9mm bullet were recovered from that cnme scene He was arrested at 2035 Berks Street in a

home that belonged to the mother of one of his children. Inside the home were an additional

seven (7) hve 9mm cartndges. Id at pp. 28-29.

         On October 28, 2015, ballistics experts determined, to a reasonable degree of scientific

certainty, that the bullets from the crime scene at 515 East Hill Creek Dnve and the bullets from

the crime scene at 2035 Berks Streets were fired from the same 9mm gun. Id at pp 29-30.

         The Defendant was identified by multiple witnesses, including Stephan Brooks, who

identified him by his nickname, Trouble, which is tattooed on the Defendant's arm. When the

shooting occurred, three (3) women and a seven (7) year old boy were within feet of the incident.

Another witness identified the Defendant from a double bhnd photo array where six (6) photos

were shown to the witness and the administrator of the array did not know the Defendant. Id at

p. 31.




                                                      3
                                            ANALYSIS

                                                Issue I

       The lower court erred and abused its discretion by denying Defendant's Motion to

       Withdraw his Guilty Plea.

       "As there is no absolute right to withdraw a guilty plea, tnal courts have discretion in

determining whether a withdrawal request will be granted; such discretion is to be admmistered

Ii berally in favor of the accused, and any demonstration by a defendant of a fair-and-just reason

will suffice to support a grant, unless withdrawal would work substantial prejudice to the

Commonwealth .... The proper inquiry on consideration of a guilty plea withdrawal motion is

whether the accused has made some colorable demonstration, under the circumstances, such that

permitung withdrawal of the plea would promote fairness and justice." Com v Carrasquillo,

631 Pa. 692, 704-706 (Pa. 2015). "A trial court's decision regarding whether to permit

a guilty plea to be withdrawn should not be upset absent an abuse of discretion;

an abuse of discretion exists when a defendant shows any fair and just reasons

for withdrawing his plea absent substantial prejudice to the Commonwealth." Com v Elia, 83

A.3d 254, 261 (Pa. Super. 2013)

       In his motion to withdraw his guilty plea, Appellant fails to set forth any fact to support

his request to withdraw his guilty plea. He merely makes a bald assertion that he would like to

withdraw his plea. The motion states the following:

       "l     On July 17, 2017, Petitioner entered a plea of guilty to Murder, etc.

        2.    In accordance with the negotiation between defense counsel and the

              Commonwealth, Your Honor sentenced Petitioner to a term of 28.5-57 years in a

              state correctional institution.



                                                      4
         3.    Petitioner respectfully requests that this Court allow him to withdraw his plea of

               guilty, which he entered on July 17, 2017."

Defendant's Mallon to Withdraw Gutlty Plea, at p I, filed July 25, 2017. Defendant does not

claim, for instance, that he is innocent of the crime he pied guilty to, nor does he claim that his

guilty plea was the result of pressure, coercion, or misunderstanding. For this reason alone,

Defendant was not entitled to withdraw his guilty plea and it was not an abuse of discretion for

the Court to deny his motion to withdraw it.

       Assuming arguendo that Defendant's claim was that his plea was involuntary, the record

belies that claim and Defendant's motion to withdraw his guilty plea fails to elucidate it. There

are six areas that Pennsylvania law requires trial courts to look into when examining the

voluntariness of a guilty plea. The trial court must inquire mto a defendant's understanding

regarding·


                       -1. The charges to which he is pleading guilty

                       -2. The factual basis for his plea

                       -3. The right to a tnal by jury

                       -4. The presumption of innocence

                       -5. The permissible ranges of sentences; and

                       -6. The fact that the judge is not bound by the plea agreement.


Com v McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)


All of these factors were addressed during Defendant's guilty plea colloquy. NT 07/17/17.

("Where the record clearly indicates that a guilty plea colloquy was conducted, dunng which it

became evident that the defendant understood the nature of the charges against him, the


                                                         5
voluntariness of the plea is established." Com v McCauley, 797 A.2d 920, 922 (Pa. Super.

2011).


         Defendant also received the benefit of the bargain, in that, in exchange for pleading guilty

to Third Degree Murder, the Commonwealth did not charge Defendant with First Degree Murder

and pursue a life-sentence for the Defendant. ("The desire of an accused to benefit from a plea

bargain is a strong indicator of the voluntariness of his plea." Com v Pollard, 832 A.2d 517,

524 (Pa. Super 2003)). Evidence was presented by the Commonwealth which indicated that

Defendant shot the decedent in retaliation for the shooting of the Defendant's uncle. The

shooting took place in broad daylight and Defendant was identified by multiple eyewitnesses

Fourteen (14) 9mm FCC's were recovered from the crime scene and five (5) 9mm projectiles

were recovered from the decedent's body. Clearly, the ballistic evidence strongly corroborates

the specific intent to kill needed to prove Fust Degree Murder. Appellant pleaded guilty to Third

Degree Murder and removed himself from the very real possibility of a life sentence.


         Finally, after the witness impact evidence was offered at sentencing, Defendant chose to

exercise his right of allocution, during which he expressed his remorse and reaffirmed his guilt


         "Every case I had, my mom always told me, she always told me to man up. If I did

         something, man up to it. If I didn't do nothing, don't JUSt fall for anything and I always

         lived by that. So today that is what I did, I owned up for what I did and for the family,

         that I'm truly sorry that it had to come down to this with this situation we are in nght now

         but as long as they know that every day, even if they don't think about it, that they know

         somebody is thinking about it because I can't let that out of my life because now it is a

         part of my life."


                                                      6
N.T. 07/17/17 at pp. 47-48.


       For all the reasons stated above, the Court did not err or abuse its discretion in denying

Defendant's Motion to Withdraw his guilty plea.


                                         CONCLUSION

       Based on the foregoing, the court's denial of the PCRA petition should be affirmed.




                                                     7
Commonwealth v. Kyle Mathis
CP-51-CR-OO 12453-2015
Opinion

                                         Proof of Service

I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and in
the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P. 114:

Petitioner:                   Mr. Kyle Mathis, MN 5233
                              SCI Fayette
                              P.O. Box 9999
                              LaBelle, PA 15450-1050

Type of Service:      ( ) Personal    ( ) First Class Mail   (x) Other, Please Specify: Certified

Counsel·                      Jason E. Parris, Karl Baker, Owen W. Larrabee, and Keir
                                     Bradford-Grey, Esquires
                              Appeals Division
                              Defender Association of Philadelphia
                              1441 Sansom Street
                              Philadelphia, PA 19102

Type of Service:      () Personal     (x) First Class Mail   () Other, Please Specify:

District Attorney:            Philadelphia District Attorney's Office
                              Appeals Unit
                              Widener Bldg.
                              3 South Penn Square
                              Philadelphia, PA 19107

Type of Service.      () Personal     () First Class Mail    (x) Inter-Office




Date: 10/31/2017

                                      Law Clerk to the Honorabl
