Com. v. Norwood, K. ( 2017 )

J-S76012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEITH NORWOOD
Appellant No. 319 EDA 2016
Appeal from the Judgment of Sentence October 9, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0016048-2010
BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED January 12, 2017
Appellant Keith Norwood appeals nunc pro tunc from the October 9,
2012 judgment of sentence entered in the Court of Common Pleas of
Philadelphia County (“trial court”) following his guilty plea to third degree
murder, conspiracy to commit third degree murder, and possessing
instruments of crime.1 Appellant challenges the voluntariness of his plea.
Upon review, we affirm.
On October 9, 2012, Appellant entered a negotiated guilty plea to
murder of the third degree, conspiracy, and possessing an instrument of
crime. Appellant was sentenced to an aggregate term of 25-50 years’
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(c), 903, & 907 respectively.
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incarceration for third degree murder and conspiracy to commit third degree
murder. On October 18, 2012, the trial court denied Appellant’s motion for
reconsideration of sentence.2 Appellant did not file a direct appeal.
On October 9, 2013, Appellant filed a timely pro se PCRA petition. The
trial court appointed Appellant PCRA counsel who filed an amended PCRA
petition on October 21, 2014. After numerous continuances, the trial court
reinstated Appellant’s direct appellate rights nunc pro tunc on January 15,
2016. On January 20, 2016, Appellant filed a notice of appeal nunc pro
tunc. On February 26, 2016, the trial court directed Appellant to comply
with Pa.R.A.P. 1925(b). Appellant filed a 1925(b) statement on March 1,
2016, and the trial court issued an opinion on June 24, 2016.
Appellant raises a sole issue on appeal. “Was [A]pellant’s guilty plea
not knowing, intelligent[,] and voluntary because [A]ppellant was not
informed of the mens rea elements of the offenses of third degree murder
and conspiracy to commit third degree murder?” Appellant’s Brief at 2.
It is well settled “that by entering a guilty plea, the defendant waives
his right to challenge on direct appeal all nonjursidictional defects except the
legality of the sentence and the validity of the plea.” Commonwealth v.
Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013) (citation omitted). “There is
no absolute right to withdraw a guilty plea.” Commonwealth v. Broaden,
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2
Appellant’s motion was filed pro se; however, it was adopted by trial
counsel.
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980 A.2d 124, 128 (Pa. Super. 2009) (citations omitted). In order to
withdraw a guilty plea following the imposition of sentence, “a defendant
must demonstrate that manifest injustice would result.”3 Id. at 129.
“Manifest injustice may be established if the plea was not tendered
knowingly, intelligently, and voluntarily.” Id. (citations omitted).
Furthermore, “the court must examine the totality of circumstances
surrounding the plea.” Id. (citations omitted).
During the guilty plea hearing, the Commonwealth provided the
following description of the crimes charged.
Murder of the third degree requires the Commonwealth to
prove beyond a reasonable doubt that you acted with
malice and caused the death of someone. For third-degree
murder, malice is defined as acting with complete
disregard for the value of human life. This is different
from first-degree murder where you have to act with a
specific intent to kill. For third-degree murder, the
Commonwealth only has to prove you acted with disregard
to the value of human life.
N.T. Guilty Plea, 10/9/2012, at 18. Malice is defined as “a wickedness of
disposition, hardness of heart, cruelty, recklessness of consequences, and a
mind regardless of social duty, although a person may not be intended to be
injured.” Commonwealth v. McHale, 858 A.2d 1209, 1213 (Pa. Super.
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3
While Appellant did not file a post-sentence motion to withdraw guilty plea
nunc pro tunc, this Court will still address this issue. In his PCRA petition
Appellant requested the reinstatement of his post-sentence motion rights as
well as direct appellate rights. The trial court’s order reinstating his direct
appellate rights fails to address the right to file post-sentence motions nunc
pro tunc. Therefore, we will not find this issue waived.
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2004). Furthermore, “malice is the element that raises criminal homicide to
culpable murder.” Id. The Commonwealth clearly stated “malice is defined
as acting with complete disregard for the value of human life.” Moreover,
Appellant’s brief fails to develop the argument or cite to any authority that
the definition read to Appellant is not the functional equivalent of
“wickedness of disposition, hardness of heart, cruelty, recklessness of
consequences, and a mind regardless of social duty.” The Commonwealth’s
description adequately addressed the element of malice required for third
degree murder; therefore, Appellant’s claim that his guilty plea to third
degree murder was not knowing, intelligent, or voluntary fails.
Appellant’s next claim is that his plea was not knowing, intelligent, or
voluntary because he was misinformed of the elements of conspiracy to
commit third degree murder. During the guilty plea hearing, the
Commonwealth defined the elements of conspiracy to commit third degree
murder.
You are also pleading guilty to a charge of conspiracy to
commit third-degree murder, and that, in this case, that
means the Commonwealth has to prove beyond a
reasonable doubt that you made some kind of an
agreement with another person and took at least one step
towards completing this agreement. In this case, the
agreement to commit third-degree murder would mean
that you, in essence, agreed with someone to commit at
least serious bodily injury upon another person. In this
case, that serious bodily injury resulted in someone’s
death.
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N.T. Guilty Plea, 10/9/2012, at 19. Conspiracy requires that the defendant
have the intent of promoting or facilitating a crime and engaging in conduct
which constitutes such crime. 18 Pa.C.S.A. § 903(a). In Commonwealth
v. Fisher, 80 A.3d 1186 (Pa. 2013), our Supreme Court held that conspiracy
to commit third degree was a cognizable offense and “if a defendant acts
with his co-conspirators in brutally attacking the victim . . . but does not
care whether the victim dies or not, he conspires to commit third degree
murder.” Fisher, 80 A.3d at 1195. As this factual scenario is practically
identical to the description given to Appellant during his guilty plea colloquy,
Appellant’s claim fails. Furthermore, Appellant’s brief fails to develop the
argument or cite to any authority that the definition read to Appellant is
inadequate.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2017
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