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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                 :
                                    :
SCOTT GRIFFIN,                      :        No. 2817 EDA 2018
                                    :
                      Appellant     :


      Appeal from the Judgment of Sentence Entered May 30, 2018,
          in the Court of Common Pleas of Philadelphia County
            Criminal Division at No. CP-51-CR-0006667-2016


COMMONWEALTH OF PENNSYLVANIA        :    IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                 v.                 :
                                    :
SCOTT GRIFFIN,                      :        No. 1907 EDA 2018
                                    :
                      Appellant     :


      Appeal from the Judgment of Sentence Entered May 30, 2018,
          in the Court of Common Pleas of Philadelphia County
            Criminal Division at No. CP-51-CR-0006671-2016


COMMONWEALTH OF PENNSYLVANIA        :    IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                 v.                 :
                                    :
SCOTT GRIFFIN,                      :        No. 1908 EDA 2018
                                    :
                      Appellant     :


      Appeal from the Judgment of Sentence Entered May 30, 2018,
          in the Court of Common Pleas of Philadelphia County
            Criminal Division at No. CP-51-CR-0006665-2016
J. S37035/19
J. S37036/19

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
SCOTT GRIFFIN,                          :         No. 1909 EDA 2018
                                        :
                       Appellant        :


       Appeal from the Judgment of Sentence Entered May 30, 2018,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0005695-2016


COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
SCOTT GRIFFIN,                          :         No. 1910 EDA 2018
                                        :
                       Appellant        :


       Appeal from the Judgment of Sentence Entered May 30, 2018,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0006692-2016


BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 04, 2019

     In these consolidated appeals, Scott Griffin appeals from the May 30,

2018 aggregate judgment of sentence of 23 to 46 years’ imprisonment

imposed after he pled guilty to a plethora of charges in five related criminal

matters. After careful review, we affirm the judgment of sentence.

     The trial court summarized the underlying facts of this case as follows:




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             During the open guilty plea, the Assistant District
             Attorney Elizabeth Birch stated that if the
             Commonwealth went to trial, Southwest Detective
             Ryan Moore would have testified that a female being
             held in custody reported that there was a gun in the
             trash can next to [appellant’s] holding cell at the
             Eighteenth Police District facility at Fifty-Fifth and Pine
             on March 16, 2016. Detective Moore inspected the
             trash can and found a black semiautomatic handgun
             with serial number A001928 loaded with seven live
             rounds in the magazine and one in the chamber.
             [Appellant] then gave a post Miranda[1] statement
             indicating that he smuggled the gun into the holding
             cell and hid it in the trash can. [Appellant] does not
             have a valid license to carry a firearm and the firearm
             was deemed to be operable upon testing by the
             Philadelphia Firearms Identification Unit. . . .

             Additionally,      Assistant      District     Attorney
             Jennifer Hoffman noted the extensive evidence that
             the Commonwealth would have provided had the
             other cases proceeded to trial. Initially, Complainant
             Douglas Graham met with [appellant] and the
             co-[d]efendant, Samir Coyett, at Salford and Market
             Streets with the intention of selling pills to them on
             April 17, 2016, at approximately 8:45 p.m.
             Mr. Graham did not have the pills and asked to see
             the money first, to which [appellant] responded by
             pulling out a gun and instructing Mr. Coyett to pat him
             down. [Appellant and Coyett] took Mr. Graham’s
             wallet and keys and then walked up to his car on
             Salford Street. Upon reaching what they believed to
             be Mr. Graham’s red Dodge Durango, [appellant]
             opened the passenger side door, produced a silver and
             black [handgun], and ordered Tyhia Blilia out of the
             vehicle. As [Coyett] attempted to start the car,
             Ms. Blilia flagged down Philadelphia Police. When
             Philadelphia Police Officers Pabon and McCullough of
             the Eighteenth District approached, Mr. Coyett ran
             away and [appellant] got out of the vehicle, tripped
             and fell. As the police tackled [appellant,] he turned


1   Miranda v. Arizona, 384 U.S. 436 (1966).


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             and shot Officer McCullough one time in the upper left
             thigh. [Appellant] then fled the scene and Mr. Coyett
             was later tackled by the complainant who held him
             until additional police arrived.

             The day after the shooting[,] police were told by a
             confidential informant that the individual who shot
             Officer McCullough was in the area of the
             twelve hundred block of North Alden Street in
             Philadelphia, Pennsylvania.     Narcotics Field Unit
             Officers Coolen and Montage went to the area and
             observed [appellant] walking down the street at which
             point the officers approached him, asked him to raise
             his hands, and arrested him upon observing the butt
             of a gun in his waistband. The gun was a silver and
             black .380 caliber PPK/S firearm with S087831 serial
             number and was deemed operable by the Firearms
             Identification Unit. . . .

Trial court opinion, 12/21/18 at 3-5 (citations to notes of testimony omitted;

emphasis added).

        Appellant was charged with 38 separate offenses in connection with

these incidents.     From October 2016 until November 2017, appellant

requested two continuances to pursue a plea deal, and actually rejected a plea

offer from the Commonwealth on December 12, 2016.               Thereafter, on

December 4, 2017, appellant entered an open guilty plea in the five underlying

cases presently on appeal. Specifically, appellant pled guilty to the following:

at CP-51-CR-0005695-2016, carrying a firearm without a license and carrying

a firearm on public streets or public property in Philadelphia 2; at CP-51-CR-

0006665-2016, robbery, robbery of a motor vehicle, criminal conspiracy,



2   18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively.


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carrying a firearm without a license, and carrying a firearm on public streets

or public property in Philadelphia3; at CP-51-CR-0006667-2016, aggravated

assault, assault of a law enforcement officer, criminal conspiracy, carrying a

firearm without a license, and carrying a firearm on public streets or public

property in Philadelphia4; at CP-51-CR-0006671-2016, carrying a firearm

without a license and carrying a firearm on public streets or public property in

Philadelphia5; and at CP-51-CR-0006692-2016, robbery, criminal conspiracy,

carrying a firearm without a license, and carrying a firearm on public streets

or    public   property   in   Philadelphia.6     The    remaining   charges   were

nolle prossed by the Commonwealth, and sentencing was continued for the

preparation of a presentence investigation report and a mental health

evaluation. (See notes of testimony, 12/4/17 at 26.)

        On January 30, 2018, appellant’s counsel filed a motion to withdraw

appellant’s guilty plea, wherein he asserted “[appellant] maintains his

innocence and wishes to have a trial on these charges.” (Motion to withdraw

guilty plea, 1/30/18 at ¶ 4.)        Following a hearing, the trial court denied




3  18 Pa.C.S.A. §§ 3701(a)(1), 3702(a), 903, 6106(a)(1), and 6108,
respectively.

4  18 Pa.C.S.A.    §§     2702(a),   2702.1(a),   903,    6106(a)(1),   and    6108,
respectively.

5   18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively.

6   18 Pa.C.S.A. §§ 3701(a)(1), 903, 6106(a)(1) and 6108, respectively.


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appellant’s motion on April 2, 2018.       As noted, the trial court sentenced

appellant to an aggregate term of 23 to 46 years’ imprisonment on May 30,

2018. On June 26, 2018, appellant filed five separate, timely notices of appeal

for each docket number, in compliance with Commonwealth v. Walker, 185

A.3d 969 (Pa. 2018). Thereafter, on March 4, 2019, this court sua sponte

consolidated appellant’s appeals in the following four cases:            CP-51-CR-

0006667-2016 (2817 EDA 2018); CP-51-CR-0006671-2016 (1907 EDA

2018); CP-51-CR-0006665-2016 (1908 EDA 2018); CP-51-CR-0005695-2016

(1909   EDA    2018);    and   CP-51-CR-0006692-2016        (1910   EDA     2018).

Appellant’s appeal involving the non-fatal shooting of Officer McCullough was

not consolidated with the remaining cases. Except for the docket numbers

listed on the cover pages, all five of appellant’s briefs to this court are

identical.

      On appeal, appellant raises only one issue for our review: “Did the trial

court err by denying [a]ppellant’s motion to withdraw his guilty plea prior to

sentencing?” (Appellant’s brief at 5.)

      Courts in this Commonwealth have long recognized that there is “no

absolute right to withdraw a guilty plea; rather, the decision to grant such a

motion lies within the sound discretion of the trial court.” Commonwealth

v. Muhammad, 794 A.2d 378, 382 (Pa.Super. 2002) (citation omitted).

             The standard of review that we employ in challenges
             to a trial court’s decision regarding a presentence
             motion to withdraw a guilty plea is well-settled. A trial



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            court’s decision regarding whether to permit a guilty
            plea to be withdrawn should not be upset absent an
            abuse of discretion.

Commonwealth v. Johnson-Daniels, 167 A.3d 17, 23 (Pa.Super. 2017)

(citation omitted), appeal denied, 174 A.3d 1029 (Pa. 2017). “An abuse of

discretion will not be found based on a mere error of judgment, but rather

exists where the [trial] court has reached a conclusion which overrides or

misapplies the law, or where the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Commonwealth v. Norton, 201 A.3d 112, 120 (Pa. 2019) (citation omitted).

      Pennsylvania Rule of Criminal Procedure 591 governs presentence

motions to withdraw a guilty plea and provides, in pertinent part, 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.” Pa.R.Crim.P. 591(A).

      In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), our

supreme court clarified its position with regard to presentence challenges to a

guilty plea based upon an assertion of innocence. The Carrasquillo court

held that “the proper inquiry on consideration of such a withdrawal motion is

whether the accused has made some colorable demonstration, under the

circumstances, such that permitting withdrawal of the plea would promote

fairness and justice.” Carrasquillo, 115 A.3d at 1292 (citations omitted). In



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affirming the trial court’s refusal to allow the defendant to withdraw his plea,

the Carrasquillo court rejected the bright-line approach to innocence claims,

holding that “a bare assertion of innocence is not, in and of itself, a sufficient

reason to require a court to grant [a presentence motion to withdraw a guilty

plea].” Id. at 1285. Rather, the trial court retains a degree of discretion in

determining whether the defendant’s innocence claim “is plausible to

demonstrate, in and of itself, a fair and just reason for presentence withdrawal

of a plea.” Id. at 1292.

      More recently, in Norton, our supreme court reiterated that,

            the Carrasquillo Court clearly established that trial
            courts have the discretion to assess the plausibility of
            claims of innocence. Consistent with the well-
            established standards governing trial court discretion,
            it is important that appellate courts honor trial courts’
            discretion in these matters, as trial courts are in the
            unique position to assess the credibility of claims of
            innocence and measure, under the circumstances,
            whether defendants have made sincere and colorable
            claims that permitting withdrawal of their pleas would
            promote fairness and justice.

Norton, 201 A.3d at 121.

      In the instant matter, the trial court concluded that appellant failed to

satisfy the requirements set forth in Carrasquillo to support his presentence

motion to withdraw his guilty plea. (Trial court opinion, 12/21/18 at 8.) The

trial court noted that “[appellant] has made no more than a bare assertion of

innocence” in his withdrawal motion and at the April 2, 2018 hearing. (Id.)




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      Upon review of the record, we discern no abuse of discretion on the part

of the trial court in reaching these conclusions. As noted in his presentence

motion to withdraw his guilty plea, appellant made the following assertions in

support of his claim that he was innocent:

            4.    [Appellant] maintains his innocence and wishes
                  to have a trial on these charges.

            9.    [Appellant] has maintained his innocence on
                  these charges and wishes to have a trial.

Motion to withdraw guilty plea, 1/30/18 at ¶¶ 4, 9.

      Subsequently, at the April 2, 2018 hearing on his motion to withdraw,

counsel made the following statement on appellant’s behalf:

            My client has told me that he asserts his innocence in
            this case, and he felt pressured into taking the pleas
            because of the number of cases involved and the
            number of witnesses involved, and the seriousness of
            the crimes.

            He has said that to me in consultation. He did accept
            the guilty plea when we went forth that day, but then
            soon thereafter he contacted me, and in his letters he
            told me he didn’t feel right pleading to something he
            didn’t do.

Notes of testimony, 4/2/18 at 5. Later during the hearing, appellant was given

an opportunity to address the court and echoed this bare assertion of

innocence, stating as follows:

            Basically one thing is, there is a lot of stuff I don’t
            even have, and a lot of this stuff I really don’t feel I’m
            guilty.




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               All right. The drug charges, yes, I plead guilty. To
               the gun case in the police station, I plead guilty.
               Everything else I just don’t feel guilty of, and I don’t
               have full discovery, and there’s a lot of stuff, and I
               just feel I’m not guilty.

               That’s it.

Id. at 13.

      The      record   further   reflects   that   the   trial   court   analyzed   the

circumstances surrounding appellant’s pretrial proceedings, including his

initial rejection of the Commonwealth’s plea offer on December 12, 2016; his

entry of a guilty plea almost a year later on December 4, 2017; and his

subsequent motion to withdraw said plea less two months later, on

January 30, 2018, three days before his scheduled sentencing hearing. (See

trial court opinion, 12/21/18 at 1-2, 10.) Contrary to appellant’s contention,

the record supports a finding that appellant failed to make a “colorable

demonstration, under the circumstances, such that permitting withdrawal of

the plea would promote fairness and justice.” Carrasquillo, 115 A.3d at 1292

(emphasis added). Appellant possessed ample opportunity during the nearly

two-year period from the date he was charged until entry of his guilty plea to

examine and weigh the evidence in the five underlying cases, in deciding

whether to assert his innocence. He failed to do so. Accordingly, we conclude

that the trial court, in light of the standard articulated in Carrasquillo, acted

within its discretion in denying appellant’s presentence motion to withdraw his

guilty plea.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/4/19




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