J-S60023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    DAVID LAWRENCE BELINDA                 :
                                           :
                     Appellant             :   No. 1018 MDA 2019

         Appeal from the Judgment of Sentence Entered June 20, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0005016-2018


BEFORE:      SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 11, 2020

        Appellant, David Lawrence Belinda, appeals from the judgment of

sentence entered on June 20, 2019, in the Berks County Court of Common

Pleas. Because we conclude that Appellant waived his lone issue on appeal,

we affirm.

        The record reveals that on December 7, 2018, the Commonwealth

charged Appellant with the crimes of burglary, criminal trespass, simple

assault, and attempt to commit criminal mischief.1 Information, 12/7/18. On

February 21, 2019, the case was listed for a jury trial; however, on June 19,


*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3502(a)(1)(i), 3503(a)(1)(ii), 2701(a)(1), and 901(a),
respectively. On June 19, 2019, the trial court granted the Commonwealth’s
motion to amend the information. The charge of attempt to commit criminal
mischief was amended to a count of criminal mischief under 18 Pa.C.S.
§ 3304(a)(2). Order, 6/19/19.
J-S60023-19


2019, the Commonwealth informed the trial court that it had reached a

negotiated plea agreement with Appellant. Appellant agreed to plead guilty

to one count of simple assault in exchange for a sentence of time-served to

twenty-three months of incarceration. Statement Accompanying Defendant’s

Request to Enter a Guilty Plea, 6/19/19, at 1-4; N.T., 6/19-20/19, at 3.

      Prior to accepting the guilty plea, the trial court conducted a colloquy on

the record. N.T., 6/19-20/19, at 3-6. During the oral colloquy, Appellant

informed the trial court that he understood the charge of simple assault and

admitted to the facts underlying that charge. Id. Appellant stated that he

was aware that by pleading guilty, he was surrendering certain rights,

including the presumption of innocence, the right to a jury trial, and the right

to file pretrial motions. Id. at 4. The trial court asked Appellant if he was

pleading guilty of his own free will, satisfied with his counsel’s representation,

understood the range of sentences available, and aware of his limited appeal

rights. Id. at 5-6. The trial court also inquired if Appellant understood that

the trial court was not bound by the plea agreement. Id. at 5. Appellant

answered these questions in the affirmative, and he agreed to the terms of

the guilty plea.   Id. at 6.   Appellant also completed a written guilty-plea

colloquy.   Statement Accompanying Defendant’s Request to Enter a Guilty

Plea, 6/19/19, at 1-4.

      Following the oral and written colloquies, the trial court concluded that

Appellant’s guilty plea was knowingly and voluntarily entered, and the matter


                                      -2-
J-S60023-19


proceeded to sentencing. N.T., 6/19-20/19, at 6. The trial court then advised

Appellant of his right to allocution, and the following exchange occurred:

      [The trial court]: [Appellant], you have the right of allocution ….
      Is there anything that you want to say at this time?

      [Appellant]: I just want to say you’re welcome.

      [The trial court]: Say what?

      [Appellant]: I just want to say you’re welcome for your victory.

      [The trial court]: All right. Bring the jury panel up now. I’m not
      going to put up with nonsense like this and game playing.

N.T., 6/19-20/19, at 8.

      The trial court withdrew Appellant’s guilty plea sua sponte pursuant to

Pa.R.Crim.P. 591(A), and the case proceeded to trial. Following a two-day

trial, the jury acquitted Appellant of burglary, but it found him guilty of

criminal trespass, simple assault, and criminal mischief. After the verdict and

prior to sentencing, the trial court permitted Appellant to address the court.

      [The trial court]: Is there anything that you want to say at this
      time?

      [Appellant]: I did not know saying you’re welcome for the victory
      was a sign of saying I want to go to trial. That was congratulating
      you guys on me conceding that you guys won, that I conceded to
      the decision. I did not say I wanted to go to trial at any time --

      [The trial court]: Well --

      [Appellant]: -- Your Honor.

      [The trial court]: -- the thing that influenced the [trial court] at
      that point was your utter lack of any showing of remorse and the




                                     -3-
J-S60023-19


      cynical, snide expressions that you used, and it was to the [trial
      court] in declaration that you didn’t do any of these things and,
      you know, you were just taking it easy on everybody else.

N.T., 6/19-20/19, at 241-242. Following this exchange, the trial court

sentenced Appellant to an aggregate term of twenty-eight months to twelve

years of incarceration. Id. at 243-244. Appellant did not file post-sentence

motions. Appellant filed a timely notice of appeal, and both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents one issue:

      1. Whether the trial court erred for failing to accept the
         Appellant’s negotiated guilty plea and sentence after Appellant
         uttered the words “You’re welcome[,]” at the time of his
         allocution?

Appellant’s Brief at 4. Our standard of review is as follows:

              Pennsylvania Rule of Criminal Procedure 591(A) provides
      that, [a]t 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. We will not
      disturb the trial court’s decision to sua sponte withdraw a
      defendant’s plea of guilty absent an abuse of discretion. An abuse
      of discretion is not merely an error of judgment, but if in reaching
      a conclusion the law is overridden or misapplied or the judgment
      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias, or ill will, as shown by ... the record, discretion is
      abused.

Commonwealth v. Herbert, 85 A.3d 558, 561 (Pa. Super. 2014) (internal

citations and quotation marks omitted).

      As set forth above, the trial court sua sponte withdrew Appellant’s guilty

plea pursuant to Pa.R.Crim.P. 591(A), and the case was tried before a jury.


                                       -4-
J-S60023-19


Appellant did not object. It was not until the time of sentencing that Appellant

asserted any complaint of having his plea withdrawn by the court and

proceeding to trial.   As noted above, Appellant remarked: “I did not know

saying you’re welcome for the victory was a sign of saying I want to go to

trial. [I] was congratulating you guys …. I did not say I wanted to go to trial

at any time[.]” N.T., 6/19-20/19, at 241. However, despite this statement,

at no time did Appellant lodge a specific objection to the revocation of his

guilty plea.

      It is well settled that issues that are not raised before the trial court may

not be raised for the first time on appeal. Pa.R.A.P. 302(a). Additionally:

      It is well established that trial judges must be given an opportunity
      to correct errors at the time they are made.                     See
      Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272, 274
      (1974). “[A] party may not remain silent and afterwards complain
      of matters which, if erroneous, the court would have corrected.”
      Id., quoting Commonwealth v. Marlin, 452 Pa. 380, 305 A.2d
      14, 16 (1973) (citations omitted)[; see also] Commonwealth v.
      Chimenti, 362 Pa.Super. 350, 524 A.2d 913, 921 (1987) (issue
      was waived where defense counsel objected to a question posed
      by the prosecutor but failed to ask the trial judge to do anything
      further after the question had been answered).

Commonwealth v. Strunk, 953 A.2d 577, 579-580 (Pa. Super. 2008).

      Moreover, throughout the proceeding, Appellant was represented by

counsel. After the trial court sua sponte withdrew the guilty plea, Appellant

was tried before a jury where he remained counseled. Rather than lodging a

timely and specific objection, Appellant proceeded with a jury trial through to

its conclusion and verdict.


                                      -5-
J-S60023-19


      As a corollary, guilty pleas are not to be utilized as “sentence-testing”

devices. Commonwealth v. Culsoir, 209 A.3d 433, 437 (Pa. Super. 2019).

In the instant case, rather than timely objecting to the withdrawal of guilty

plea, Appellant engaged in “verdict testing.” Appellant watched silently as the

trial court withdrew the guilty plea, proceeded to a jury trial, and learned the

jury’s verdict.   When Appellant was unhappy with that verdict, he filed an

appeal and presented this issue for the first time, well after the trial court

could have addressed Appellant’s complaint.

      Accordingly, Appellant waived his challenge to the sua sponte

withdrawal of his guilty plea.   Because Appellant waived the lone issue on

appeal, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Stabile joins this Memorandum.

      Judge Pellegrini files a Dissenting Memorandum.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2020




                                     -6-
