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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                         :
                                         :
                                         :
 CHARLES BROWN                           :
                                         :
                   Appellant             :   No. 2908 EDA 2018

        Appeal from the Judgment of Sentence Entered May 16, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0004920-2017




 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CHARLES BROWN                           :
                                         :
                   Appellant             :   No. 3377 EDA 2018

              Appeal from the Order Dated November 16, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0004920-2017


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED APRIL 7, 2020

     In these two appeals, which we hereby consolidate, Appellant, Charles

Brown, appeals from his judgment of sentence (at 2908 EDA 2018), as well

as the order denying his motion for bail pending the disposition of his direct

appeal (at 3377 EDA 2018). In his appeal from his judgment of sentence of
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an aggregate term of 8 to 20 years’ incarceration, Appellant challenges the

trial court’s denial of his post-sentence motion to withdraw his guilty plea. In

his appeal from the order denying him bail, Appellant contends that the court

abused its discretion because he does not pose a threat to society or a flight

risk, and he is likely to prevail in his appeal from his judgment of sentence.

After careful review, we affirm at both docket numbers.

      The trial court summarized the facts of Appellant’s underlying

convictions, as follows:

             Twenty-three year old victim, “I.C.,” reported that she had
      met and formed a brief relationship with Appellant, who had
      falsely informed her that his name was Frank Lewis. On or about
      May 5, 2016, a verbal argument ensued which quickly escalated
      to an extreme form of physical violence. Appellant severely beat
      the victim about the face and body with bags of sand and a metal
      pole.    Appellant held I.C. against her will and confined in
      Appellant’s small apartment in Philadelphia for approximately five
      days.

            During this five day period, Appellant repeatedly sodomized
      and raped the victim and forced her to call her concerned family
      members to falsely state that she had sex with her brothers.
      Those family members contacted law enforcement who rescued
      this victim from inside Appellant’s apartment and immediately
      transported her to the hospital for emergency medical treatment
      for multiple observable injuries to her arms, legs and face.
      Appellant had fled the apartment.

            The victim’s significant injuries were photographed by
      investigators and a sexual assault exam had been performed. The
      Rape Kit that had been collected, was analyzed and was positive
      for male DNA. The Arrest Warrant had been obtained on June 17,
      2016. Investigators continually searched for the Appellant until
      his arrest date of January 5, 2017. Bail was originally set at
      $500,000.00 after initial arraignment.

Trial Court Opinion (TCO), 6/21/19, at 3.


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       On May 16, 2018, the court conducted a hearing to address certain

pretrial motions filed by the parties.           During that proceeding, Appellant

indicated that he wished to accept a plea deal offered by the Commonwealth.

After “calm negotiations, private conferences, and extensive oral and written

colloquies, … and after multiple intermissions had been provided to permit

Appellant to speak to his attorney and reflect upon [the] purpose and [his]

plea intentions, [the trial c]ourt accepted Appellant’s tendered negotiated

guilty pleas to recited offenses and imposed the [o]rder and [j]udgment of

[s]entences accordingly.” Id. at 5.

       On May 24, 2018, Appellant filed a post-sentence motion to withdraw

his guilty plea. After two separate hearings on the motion, the court denied

it on August 23, 2018. Appellant timely filed an appeal, which was docketed

at 2908 EDA 2018.1 He also timely complied with the trial court’s order to file

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

       While his direct appeal was pending, Appellant filed a pro se request for

bail pending the disposition of his direct appeal. On November 16, 2018, the

court conducted an evidentiary hearing on the motion, and denied it that same

day. Appellant filed a timely appeal from that order, which was docketed at

3377 EDA 2018.
____________________________________________


1 We note that Appellant’s notice of appeal incorrectly stated that he was
appealing from the court’s August 23, 2018 order denying his post-sentence
motion. “In a criminal action, [the] appeal properly lies from the judgment of
sentence made final by the denial of post-sentence motions.”
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001)
(en banc). We have amended the caption accordingly.

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      On June 21, 2019, the trial court authored an opinion addressing the

following two issues that Appellant raises in cases 2908 EDA 2018 and 3377

EDA 2018, respectively:

      [I.] Did the lower court err in denying Appellant’s post-sentence
      motion to withdraw his guilty plea, where due to a break down in
      the attorney-client relationship with plea[]counsel, Appellant was
      psychologically coerced into pleading guilty, and therefore[,] did
      not voluntarily enter into the plea, resulting in manifest
      injustice[?]

      [II.] ... [W]hether the trial court erred in denying his motion to
      set bail pending appeal as he believes he is likely to prevail on his
      appeal on 2908 EDA 2018, poses no appreciable danger to the
      community[,] and would be gainfully employed while on bail?

Appellant’s Brief in 2908 EDA 2018 (hereinafter “Appellant’s Brief I”) at 7;

Appellant’s Brief in 3377 EDA 2018 (hereinafter “Appellant’s Brief II”) at 7.

      In Appellant’s first issue, he contends that his guilty plea was

involuntary because it “was entered into while emotions were raw, done in a

hasty manner and in the spur of the moment, and after having had what he

asserts was a heated argument between he [sic] and plea counsel.”

Appellant’s Brief I at 14.   Appellant also contends that his attorney-client

relationship with his counsel had completely broken down prior to his plea and

he was essentially coerced into entering it.

      Preliminarily,

      [i]n Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super.
      2014), impliedly overruled on other grounds by Commonwealth
      v. Hvizda, 116 A.3d 1103, 1106 ([Pa.] 2015), we explained that
      a defendant may withdraw his guilty plea after sentencing “only
      where necessary to correct manifest injustice.” Prendes, 97 A.3d
      at 352 (citation omitted). Thus, “post-sentence motions for
      withdrawal are subject to higher scrutiny since the courts strive

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      to discourage the entry of guilty pleas as sentence-testing
      devices.” Commonwealth v. Flick, 802 A.2d 620, 623 (Pa.
      Super. 2002).

      “Manifest injustice occurs when the plea is not tendered
      knowingly, intelligently, voluntarily, and understandingly.”
      Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa. Super.
      2016) (citation omitted). In determining whether a plea is valid,
      the court must examine the totality of circumstances surrounding
      the plea. Id. “Pennsylvania law presumes a defendant who
      entered a guilty plea was aware of what he was doing, and the
      defendant bears the burden of proving otherwise.” Id.

Commonwealth v. Hart, 174 A.3d 660, 664–65 (Pa. Super. 2017).

      Here, Appellant concedes that there was no defect in the court’s guilty-

plea colloquy, “which was very extensive and thorough….” Appellant’s Brief I

at 15. He contends, however, that “the circumstances made its voluntariness

dubious; to wit, the attorney-client exchange heard from the courtroom.” Id.

According to Appellant, he and counsel “had a very heated argument” just

prior to the plea proceeding. Id. at 14. While Appellant claims that “it was a

two way argument[,]” id., the trial court states that Appellant was “loudly

yelling and verbally mistreating his attorney in the private conferences held in

the cell room booth positioned next to the courtroom….” TCO at 4-5. As the

encounter between Appellant and his counsel occurred off the record, we

cannot evaluate or consider what took place. However, as the Commonwealth

points out, the record shows that after the exchange,

      the court gave [Appellant] time to “take a breath” and further
      consult with counsel before proceeding. (N.T., 5/16/18[, at]
      44)[.] After a break, [Appellant] proceeded through the guilty
      plea colloquy calmly, methodically, and without emotionally
      interrupting (as he had early in the proceedings). Nothing
      suggests that [Appellant’s] “raw emotions” were guiding his


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       decision. Moreover, on appeal, he cites no authority that suggests
       a plea becomes involuntary or unknowing simply because the
       defendant is emotional at the time of the plea.

Commonwealth’s Brief in 2908 EDA 2018 at 7-8. The record supports the

Commonwealth’s argument. We also note that nothing in the record indicates

that Appellant was rushed into his decision to plead guilty. Therefore, he has

failed to demonstrate that a manifest injustice will result by not permitting

him to withdraw his plea.2

       In Appellant’s second issue, he challenges the trial court’s denial of his

motion for bail pending the resolution of his direct appeal. Pennsylvania Rule

of Criminal Procedure 523 states:

       (A) To determine whether to release a defendant, and what
       conditions, if any, to impose, the bail authority shall consider all
       available information as that information is relevant to the
       defendant’s appearance or nonappearance at subsequent
       proceedings, or compliance or noncompliance with the conditions
       of the bail bond, including information about:

          (1) the nature of the offense charged and any mitigating or
          aggravating factors that may bear upon the likelihood of
          conviction and possible penalty;

          (2) the defendant’s employment status and history, and
          financial condition;

          (3) the nature of the defendant’s family relationships;


____________________________________________


2 We also note that, to the extent Appellant’s claims sound in plea counsel’s
ineffectiveness, such issues must be raised on collateral review pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. See
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (reaffirming the
prior holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that,
absent certain circumstances, claims of ineffective assistance of counsel
should be deferred until collateral review under the PCRA).

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           (4) the length and nature of the defendant’s residence in
           the community, and any past residences;

           (5) the defendant’s age, character, reputation, mental
           condition, and whether addicted to alcohol or drugs;

           (6) if the defendant has previously been released on bail,
           whether he or she appeared as required and complied with
           the conditions of the bail bond;

           (7) whether the defendant has any record of flight to avoid
           arrest or prosecution, or of escape or attempted escape;

           (8) the defendant’s prior criminal record;

           (9) any use of false identification; and

           (10) any other factors relevant to whether the defendant
           will appear as required and comply with the conditions of
           the bail bond.

      (B) The decision of a defendant not to admit culpability or not to
      assist in an investigation shall not be a reason to impose additional
      or more restrictive conditions of bail on the defendant.

Pa.Crim.P. 523.

      Additionally, our Court has explained that, “[w]e will review the lower

court’s order denying a bail application for an abuse of discretion and will only

reverse where the trial court misapplies the law, or its judgment is manifestly

unreasonable, or the evidence of record show that [its] decision is a result of

partiality, prejudice, bias, or ill will.” Commonwealth v. Bishop, 829 A.2d

1170, 1172 (Pa. Super. 2003) (cleaned up).

      Here, Appellant avers that the court should have granted his motion for

bail during the pendency of his direct appeal because that appeal “has much

merit….”    Appellant’s Brief II at 15.    For the reasons set forth supra, we




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disagree. Thus, Appellant’s first argument as to why the court erred by not

granting him bail is meritless.

      Appellant additionally contends that he should have been awarded bail

because his “record is not of such a nature that would render him a complete

menace to society.” Id. He elaborates that he “pled guilty to an Indecent

Assault (M2) in 2011. He has no other prior convictions.” Id. Appellant also

argues that the court weighed too heavily the facts of his present case, as he

now “asserts his innocence and therefore believes that these horrible facts

should not be held against him.” Id.

      Again, Appellant’s argument is wholly unconvincing.        Regardless of

Appellant’s prior record and his current assertion of innocence, he pled guilty

to two very serious offenses in the present case. In denying him bail, the trial

court focused on Appellant’s “particularly violent behavior, as well as evidence

of [his] long term avoidance of apprehension.”      TCO at 12-13.    The court

concluded that Appellant’s “flight risk and [the] danger to the community …

justified denial of bail.” Id. at 13. Given the record before us, we discern no

abuse of discretion in the court’s decision.

      Accordingly, we affirm both Appellant’s judgment of sentence 2908 EDA

2018, and the order denying his request for bail in 3377 EDA 2018.

      Judgment of sentence affirmed. Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2020




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