J-S21018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

DONALD MARAGH

                            Appellant                      No. 1062 EDA 2015


             Appeal from the Judgment of Sentence April 16, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001217-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                                FILED MARCH 22, 2016

        Donald Maragh appeals nunc pro tunc from his judgment of sentence

following the entry of a negotiated guilty plea to aggravated assault,1

criminal conspiracy,2 violation of the Uniform Firearms Act,3 and possession

of an instrument of crime (PIC).4              Counsel has also filed a petition to

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and its


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2702(A).
2
    18 Pa.C.S. § 903(C).
3
    18 Pa.C.S. § 6105(A)(1).
4
    18 Pa.C.S. § 907(A).
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progeny.5 After careful review, we grant counsel’s petition to withdraw and

affirm Maragh’s judgment of sentence.

       On November 30, 2011, Maragh and his co-defendant, Armand Hayes,

were involved in an altercation with the victim and his parents outside of

Eddie’s Café & Bar, located in Southwest Philadelphia.      Maragh removed a

handgun from his person and began threatening the victim and his parents.

Maragh fled in a car, driven by Hayes, where they chased the victim in his

car.   Maragh fired several shots out of the passenger-side window in the

direction of the victim’s car, causing the victim to lose control of and crash

his vehicle. Maragh got out of the car and fired several more bullets in the

victim’s direction, ultimately striking the victim in his leg. Maragh and Hayes

fled the scene.

       Police officers were able to trace the abandoned vehicle to Hayes.

Hayes confessed his involvement in the criminal episode to the police. The

victim and his parents later identified Maragh, from a photo array, as the

assailant.    A search warrant secured for Maragh’s residence uncovered a

semiautomatic 9mm handgun located under the mattress in his bedroom.

The weapon was loaded with eight live rounds; it was later matched to the

gun used in the victim’s shooting.
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5
  Pursuant to Pa.R.A.P. 1925(c)(4), counsel has filed of record and served on
the trial judge his intent to file an Anders brief in lieu of a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.




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         On April 16, 2013, Maragh entered a negotiated guilty plea with regard

to charges and sentence.           Maragh was sentenced, on the above-stated

offenses, to an agreed-upon 9½ to 20 year term of incarceration.6 On April

26, 2013, counsel filed a petition to withdraw Maragh’s guilty plea claiming

that Maragh contacted her expressing a desire to withdraw his plea and

requesting that the court schedule a hearing on the motion.             The court held

a hearing on Maragh’s motion on September 13, 2013.                    At the hearing,

Maragh insisted that he was innocent and that he had disagreed with plea

counsel’s strategy. The court denied Maragh’s motion. No direct appeal was

filed.

         On March 25, 2014, appellate counsel filed a timely7 petition, pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking

reinstatement      of   Maragh’s     appellate   rights   nunc   pro    tunc   due   to

plea/sentencing counsel’s failure to perfect a requested direct appeal.              On

March 17, 2015, the court reinstated Maragh’s appellate rights nunc pro

tunc. This timely appeal, in which counsel seeks to withdraw, follows.

         In order for counsel to withdraw from an appeal pursuant to Anders,

certain requirements must be met, and counsel must:


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6
    No further penalty was imposed on the PIC charge.
7
 For purposes of the PCRA, Maragh’s judgment of sentence became final on
October 13, 2013, when the time expired for him to file a direct appeal.
Therefore, Maragh had until October 13, 2014 to file a timely PCRA petition.



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      (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. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing

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

      Counsel has complied with the dictates of Anders, Daniels, and

Santiago by providing a summary of the procedural history and facts of the

case, referring to anything in the record that she believes arguably supports

the appeal, setting forth her conclusion that the appeal is frivolous, and

stating her reasons for concluding that the appeal is frivolous.

      Counsel points out in her Anders brief that because Maragh entered a

negotiated guilty plea, he is effectively limited in the issues he can raise on

appeal.   We agree.   It is well settled that “a plea of guilty amounts to a

waiver of all defects and defenses except those concerning the jurisdiction of

the court, the legality of the sentence, and the validity of the guilty plea.”

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991). See

Commonwealth v. Moyer, 444 A.2d 101 (Pa. 1982); Commonwealth v.

Coles, 530 A.2d 453 (Pa. Super. 1987).




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      In his December 15, 2015 response to counsel’s Anders brief, Maragh

attaches an affidavit prepared by co-defendant Hayes, claiming that Hayes

was the perpetrator of the crimes for which Maragh was convicted. In that

affidavit, Hayes states, in part, “Donald Maragh should not be in prison for a

crime he didn’t commit, but it[’]s my fault, and it[’]s been bothering me this

whole time.” Affidavit of Armand D. Hayes, 5/14/14. Maragh now presents

an after-discovered evidence claim based on Hayes’ affidavit and argues that

counsel should not be permitted to withdraw because she is required to

advance this argument on appeal for him.

      Counsel, on the other hand, notified Maragh that the affidavit would

not help him on direct appeal because her duty as an appellate attorney is to

“look for legal errors that were done at trial and at sentencing . . . and [any

error] that may have been done during pre-trial litigation.     Therefore, the

affidavit was not presented as evidence and cannot be presented in your

direct appeal.” Letter from Jennifer A. Santiago, Esquire, to Donald Maragh,

11/24/14, at 1.

      Counsel is incorrect in stating that a claim of after-discovered evidence

cannot be advanced on appeal. Pursuant to Pa.R.Crim.P. 720(C), “[a] post-

sentence motion for a new trial on the ground of after-discovered evidence

must be filed in writing promptly after such discovery.” Additionally, after-

discovered evidence discovered during the direct appeal process must be

raised promptly during the direct appeal process.      See Pa.R.Crim.P. 720,

Notes (Miscellaneous); see also Commonwealth v. Perrin, 108 A.3d 50

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(Pa. Super. 2015) (after-discovered evidence discovered during direct appeal

process must be raised promptly during direct appeal process and should

include request for remand to trial judge).

      Here, Maragh’s claim of after-discovered evidence, which essentially

amounts to impeachment evidence, goes to the validity of his plea.

Therefore, we may review his claim on appeal. Reichle, supra. To justify

granting a new trial on the basis of after-discovered evidence, the evidence

must have been discovered after the trial and must be such that it could not

have been obtained at the trial by reasonable diligence, must not be

cumulative or merely impeach credibility, and must be such as would likely

compel a different result.     Commonwealth v. Peoples, 319 A.2d 679,

681 (Pa. 1974).

      At the motion to withdraw hearing, plea counsel testified that there

was a letter, purportedly written by Hayes while Maragh was incarcerated,

retracting any statement Hayes had made implicating Maragh as a

participant in the shooting. N.T. Plea Withdrawal Hearing, 9/13/13, at 22-

23.   However, when counsel spoke to Hayes, he denied that Maragh was

innocent and actually informed counsel that he was going to testify for the

Commonwealth should Maragh go to trial. Id. at 23. Maragh testified at the

hearing that he knew about the alleged exculpatory evidence prior to the

entry of his plea, Peoples, supra, that he wanted a handwriting expert to

analyze the letters to show that Haynes had written them, and that counsel




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did not comply with his requests. N.T. Plea Withdrawal Hearing, 9/13/13, at

21-23.

      A review of the record does not indicate that Maragh was either

coerced into pleading guilty or induced to lie to the trial court. At his guilty

plea hearing, Maragh admitted that he was involved in a conspiracy where

Hayes operated a car in which he was a passenger, that Hayes’s car pursued

the victim’s car, and, that while Haynes drove the car, Maragh shot out of

the car’s window at the victim and ultimately struck him in the leg.       N.T.

Guilty Plea, 4/16/13, at 20-21.   Maragh told the court that he discussed the

plea agreement with his lawyer prior signing it, that he had enough time to

talk it over with his attorney, that he was satisfied with his lawyer’s

representation in the case, that he knew he had the right to go to trial, and

that he was entering the plea of his own free which included giving up the

presumption of innocence. Id. at 9-11.

      Moreover, Maragh entered into a negotiated written agreement that

took a charge of attempted murder off the table. See Commonwealth v.

Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (desire of an accused to benefit

from plea bargain is strong indicator of voluntariness of plea).        Finally,

Maragh is prohibited from challenging his guilty plea by asserting that he lied

while under oath.    See Commonwealth v. Pollard, 832 A.2d 517 (Pa.

Super. 2003); see also Commonwealth v. Lewis, 708 A.2d 497, 502 (Pa.

Super. 1988) (“[a] defendant is bound by the statements which he makes




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during his plea colloquy [and] he may not assert grounds for withdrawing

the plea that contradict statements made when he pled.”)

       Accordingly, we conclude that the court properly determined that

Maragh’s guilty plea was knowing and voluntary and that he is not entitled

to relief on his after-discovered evidence claim. We agree with counsel that

the appeal is wholly frivolous and that Maragh’s sentence should be affirmed

on appeal.

       Judgment of sentence affirmed.            Counsel’s petition to withdraw

granted.8

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/2016




____________________________________________


8
  Even if the alleged evidence had been discovered after Maragh was
sentenced and he was permitted to withdraw his plea and proceed to trial,
the evidence would not have likely compelled a different result, Peoples,
supra, as there was overwhelming eyewitness and physical evidence
implicating Maragh as the individual who shot at the victim.




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