Com. v. Dorsey-Griffin, H. ( 2020 )

J-S27025-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HYKEIM DORSEY-GRIFFIN :
:
Appellant : No. 1871 EDA 2018
Appeal from the Judgment of Sentence Entered June 7, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002417-2017
BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED JULY 7, 2020
Hykeim Dorsey-Griffin (Appellant) appeals from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas following
his negotiated guilty plea to third-degree murder and persons not to possess
firearms.1 Appellant avers he did not enter his guilty plea voluntarily. We
affirm.
The trial court summarized the Commonwealth’s presentation of the
facts and procedural history as follows. On October 12, 2016, around 7:30
p.m., Saleem Brown (Decedent) and Nyseem Dorsey-Griffin (Appellant’s
Brother) engaged in a verbal altercation regarding the sale of narcotics near
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S §§ 2502(c), 6105(a)(1).
J-S27025-20
the corner of Bristol and Franklin Streets in the Hunting Park section of
Philadelphia. N.T. Guilty Plea, 5/14/18, at 27-28. The altercation, which
included shoving, was captured on video. Appellant and two other men, who
subsequently gave statements to Philadelphia Police Detectives, observed the
altercation. The argument ceased and all individuals left the scene. Id. at
28-29.
At approximately 9:40 p.m., video surveillance showed Appellant and
Joel Medina approach the area of 4248 North Franklin Street, where Decedent
and three individuals were sitting on a front step. N.T., Guilty Plea, at 29-30.
They engaged in “pleasant conversation” and there was no argument or
fighting. Id. at 30. After a few minutes, Appellant turned to Decedent “and
said something to the effect of, ‘This is for my brother,’ or, ‘You can’t eff with
— F-U-C-K —with my brother.’” Id. Appellant, who was within three feet of
Decedent, revealed a firearm and fired 12 shots at Decedent. Decedent was
hit 11 times, including in the head. Id. at 31. Appellant and Medina then
walked away.
Medina, who initially approached the group with Appellant, as well as
one of the men on the front steps gave statements to Philadelphia Police
detectives and identified Appellant as the shooter. N.T., Guilty Plea, at 35-
36. After the shooting, Medina asked Appellant why he shot Decedent, to
which Appellant replied, “fuck him.” Id. at 36. The Philadelphia Medical
Examiner’s Officer determined Decedent died from multiple gunshot wounds
-2-
J-S27025-20
and the manner of death was homicide. The Philadelphia Firearms
Identification Unit examined ballistic evidence recovered from the crime scene
and determined that all twelve fired cartridge casings, as well as projectiles
and fragments taken from Decedent’s body, were fired from the same gun.
Id. at 32-33.
On January 8, 2017 Appellant was charged with murder and related
offenses. On May 14, 2018, Appellant entered into a negotiated guilty plea to
third-degree murder and persons not to possess firearms.2 During this guilty
plea hearing Appellant and the trial court had the following exchange:
The Court: . . . Do you want to plead guilty?
[Appellant:] It doesn’t even matter.
The Court: No. It matters. It really does. If you don’t want to
plead guilty, I’m not going to take your guilty plea obviously. All
right?
[Appellant]: Yeah.
The Court: What is the “yeah” about?
[Appellant]: It’s a yeah.
The Court: To which one?
[Appellant]: Pleading guilty.
The Court: Which question? Do you want to plead guilty?
[Appellant]: Yeah.
The Court: Okay. Because you can go on with your jury trial.
____________________________________________
2 All other charges were nolle prossed as a result of the negotiated guilty plea.
-3-
J-S27025-20
Do you understand that?
[Appellant]: Yeah.
* * *
The Court: The agreed to sentence in this case is a total of 25 to
50 years. And the way it’s going to be split up is you will receive
20 to 40 years on the third-degree murder conviction, then five to
ten years to run consecutively on the Violation of the Uniform
Firearms Act conviction. So “consecutively” means that the five
starts after the 20 ends, so that brings it to a total of 25 to 50
years.
Do you understand that?
[Appellant]: Yeah.
N.T., Guilty Plea, at 21-22, 26.
On June 7, 2018, the trial court conducted a sentencing hearing. At the
beginning of the hearing, Appellant stated he “took the [plea] deal under
duress.” N.T. Sentencing, 6/7/18, at 5. When the court asked what the
duress was, Appellant stated, “It’s a couple different things.” Id. at 6. The
trial court advised Appellant, “You don’t have to plead guilty under duress,”
and that he could file a motion to withdraw his plea, which the court would
consider against any response by the Commonwealth. Id. at 6-7. The
following exchange occurred:
The Court: Okay. I mean, do you want to file a petition to
withdraw your guilty plea?
[Appellant:] We can move forward.
The Court: With your sentencing?
-4-
J-S27025-20
[Appellant:] Uh-huh. Yes
The Court: Are you sure about that? Because you really can have
a jury trial. And it’s not a trick. This is not a trick question.
[Appellant:] No. I know. I understand.
The Court: You can have a waiver trial, if they agree. That means
I hear the case. You can have a jury trial. Your right is actually
to have a jury trial. You can just say, No, Judge. I want my jury
trial. And I don’t have a problem with that.
[Appellant:] We can move forward with sentencing
Id. at 8-9 (emphasis added).
The trial court then imposed the negotiated sentence of 20 to 40 years’
incarceration for third-degree murder, and a consecutive 5 to 10 years’
incarceration for the firearms charge, for an aggregate term of 25 to 50 years’
incarceration. Appellant did not file any post-sentence motions.
On June 15, 2018, Appellant filed a pro se notice of appeal followed by
a counseled notice of appeal on June 29, 2018.3 Appellant’s counsel, George
Yacoubian, Esquire (Trial Counsel), then filed, in the trial court, a motion to
withdraw from representation on July 12, 2018. The trial court informed Trial
____________________________________________
3 Although Appellant was represented by counsel, the court clerk properly
docketed his pro se notice of appeal. See Pa.R.Crim.P. 576(A)(4) (if
represented criminal defendant submits for filing a notice of appeal that has
not been signed by his attorney, the clerk of courts shall accept it for filing,
and a copy of the time-stamped document shall be forwarded to defendant’s
attorney and Commonwealth within 10 days); Commonwealth v. Wooden,
215 A.3d 997, 1000 (Pa. Super. 2019) (although defendant’s attorney
remained as counsel of record, it was proper for trial court clerk to docket
defendant’s pro se notice of appeal).
-5-
J-S27025-20
Counsel that it no longer had jurisdiction over the matter and he must contact
this Court. The trial court also notified counsel that it intended to file a
Pa.R.A.P. 1925(b) order, which it subsequently did on July 13, 2018, with a
deadline of August 13, 2018.
Trial Counsel filed a motion, in this Court, to withdraw as counsel on
August 18, 2018. This Court denied that motion on September 10th without
prejudice to allow him to file a petition to withdraw and brief in compliance
with Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
On October 3, 2018, the trial court filed an opinion, stating Trial Counsel
had failed to file any Pa.R.A.P. 1925(b) statement, and thus Appellant’s
appellate issues should be deemed waived pursuant to Commonwealth v.
Lord, 719 A.2d 306 (Pa. 1998).
On November 7, 2018, Trial Counsel filed another petition, in this Court,
to withdraw from representation, which this Court granted on December 10th.
That same day, this Court remanded the case for the appointment of new
counsel. Present counsel, James Berardinelli, Esquire, was appointed, and on
February 21, 2019, he filed a Rule 1925(b) statement on Appellant’s behalf.
On April 15, 2019, upon motion by Appellant, this Court again remanded this
case, directing the trial court to file a supplemental opinion. The trial court
has complied.
Appellant presents one issue for our review.
-6-
J-S27025-20
Did the lower court err in accepting [Appellant’s] guilty plea in
light of his obvious reluctance to do so?
Appellant’s Brief at 3. Appellant avers he entered into his negotiated guilty
plea involuntarily and unknowingly. Appellant claims the following exchange,
during his plea colloquy, demonstrates his equivocation about entering into
the guilty plea:
[Appellant:] Oh, I got a choice now?
The Court: You always have a choice. I mean, are you satisfied
with [Trial Counsel’s] advice regarding your guilty plea?
[Appellant:] No. But it really don’t matter.
The Court: Well, you don’t have to plead guilty. You can go to
trial. You always have a choice about trial.
[Appellant:] I asked you for a lawyer and that didn’t help. It
doesn’t matter. Let’s just get it over with.
The Court: Yeah. I know. You asked me for a lawyer. We talked
about it —
[Appellant:] That’s all.
The Court: — right? Last time. And I told you, no. You’ve got to
go along with this lawyer and work with him and then you didn’t.
Remember that?
Do you want to plead guilty?
[Appellant:] It doesn’t even matter.
Appellant’s Brief at 6 citing N.T., Guilty Plea, at 21-22. Appellant contends
that because his plea was not voluntary, the trial court erred by accepting it
and he must be awarded a new trial. We conclude this issue is waived.
-7-
J-S27025-20
Pennsylvania Rule of Appellate Procedure 302(a) states, “Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). In order to preserve an issue regarding the
voluntariness of a guilty plea, a defendant must either “object[ ] at the
sentence colloquy or otherwise raise[ ] the issue at the sentencing hearing or
through a post-sentence motion.” Commonwealth v. Monjaras-Amaya,
163 A.3d 466, 468-69 (Pa. Super. 2017).
Here, at the sentencing hearing, Appellant made a bald claim that he
pleaded guilty under duress. See N.T., Sentencing, at 6 (Appellant
responding, “It’s a couple different things,” when trial court asked, “So what
was the duress that caused you to take the deal[?]”). When the trial court
advised him he could file a motion to withdraw his plea, however, Appellant
stated, “We can move forward” with sentencing. Id. at 8. Appellant did not
preserve his issue because he did not object at any time during the sentencing
hearing nor did he file a post-sentence motion. See Monjaras-Amaya, 163
A.3d at 468-69. Appellant’s issue cannot be raised for the first time on appeal,
thus his issue is waived. See Pa.R.A.P. 302(a).
Moreover, even if Appellant had properly preserved his issue for appeal,
he would be entitled no relief.
This Court has stated:
Our law is clear that, to be valid, a guilty plea must be knowingly,
voluntarily and intelligently entered. There is no absolute right to
withdraw a guilty plea, and the decision as to whether to allow a
defendant to do so is a matter within the sound discretion of the
-8-
J-S27025-20
trial court. To withdraw a plea after sentencing, a defendant must
make a showing of prejudice amounting to “manifest injustice.”
“A plea rises to the level of manifest injustice when it was entered
into involuntarily, unknowingly, or unintelligently.” . . .
Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003) (citations
omitted). Additionally, “the desire of an accused to benefit from a plea bargain
is a strong indicator of the voluntariness of his plea.” Id. at 524.
In order for a guilty plea to be constitutionally valid, the
guilty plea colloquy must affirmatively show that the
defendant understood what the plea connoted and its
consequences. This determination is to be made by
examining the totality of the circumstances surrounding
the entry of the plea. [A] plea of guilty will not be
deemed invalid if the circumstances surrounding the
entry of the plea disclose that the defendant had a full
understanding of the nature and consequences of his
plea and that he knowingly and voluntarily decided to
enter the plea.
“Our law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden of proving
otherwise.” “[W]here the record clearly demonstrates that a
guilty plea colloquy was conducted, during which it became
evident that the defendant understood the nature of the charges
against him, the voluntariness of the plea is established.” Thus,
[a] court accepting a defendant’s guilty plea is required
to conduct an on-the-record inquiry during the plea
colloquy. The colloquy must inquire into the following
areas:
(1) Does the defendant understand the nature of the
charges to which he or she is pleading guilty or nolo
contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has
the right to trial by jury?
-9-
J-S27025-20
(4) Does the defendant understand that he or she is
presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range of
sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound
by the terms of any plea agreement tendered unless the
judge accepts such agreement?
Commonwealth v. Rush, 909 A.2d 805, 808-09 (Pa. Super. 2006) (citations
omitted).
Here, during the guilty plea hearing, the trial court thoroughly
questioned whether, despite his alleged “duress,” Appellant wished to plead
guilty, to which he responded, “Yeah.” N.T., Guilty Plea, at 22. The trial court
also advised Appellant of the proposed sentencing terms of his plea deal, and
Appellant responded that he understood his sentence. Id. at 26. Further,
Appellant signed a written guilty plea colloquy form addressing the six points
described in Rush. See Rush, 909 A.2d at 808-09; see also Written Guilty
Plea Colloquy, 5/14/18, at 1-2.
During the sentencing hearing, the trial court again inquired of Appellant
whether he wished to petition to withdraw his guilty plea. Appellant
responded, “No. I know. I understand.” N.T., Sentencing, at 9. Thus,
Appellant entered into his negotiated guilty plea voluntarily. Appellant has
neither provided evidence nor made a showing of manifest injustice. See
Pollard, 832 A.2d at 522.
The trial court further reasoned:
- 10 -
J-S27025-20
[Appellant] also received the benefit of the bargain, in that, in
exchange for pleading guilty to third-degree murder, the
Commonwealth did not charge [Appellant] with first-degree
murder and pursue a life-sentence for [Appellant]. Evidence was
presented by the Commonwealth which indicated [Decedent] and
[Appellant’s] younger brother got into a verbal altercation over
drug territory. Approximately two hours after the argument
ended, [Appellant] approached the area where [Decedent] was
sitting, yelled, “this is for my brother,” drew a 9-millimeter
semiautomatic handgun and began firing. [Appellant] fired a total
of [12] times, striking [Decedent] 11 times. The totality of the
evidence strongly corroborates the specific intent to kill needed to
prove first-degree murder. [Appellant] plead guilty to third-
degree murder and removed himself from the very real possibility
of a life sentence.
Supplemental Trial Ct. Op., 5/13/19, at 8-9; see also Pollard 832 A.2d at
524. Thus, Appellant would not be entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/07/2020
- 11 -