Com. v. Pugh, K. ( 2020 )

J-S12027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KHALIL PUGH :
:
Appellant : No. 2807 EDA 2019
Appeal from the Judgment of Sentence Entered June 25, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-00007367-2017
BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED APRIL 28, 2020
Khalil Pugh (Appellant) appeals from the judgment of sentence entered
in the Philadelphia County Court of Common Pleas following his negotiated
guilty plea to, inter alia, murder in the third degree.1 Appellant’s counsel,
Stephen O’Hanlon, Esq. (Appeal Counsel), has filed a petition to withdraw from
representation and a brief pursuant to Anders v. California, 386 U.S. 738(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
grant Appeal Counsel’s petition to withdraw, and affirm Appellant’s judgment
of sentence.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2502(c).
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The trial court summarized the relevant facts as follows. On August 7,
2017, Appellant entered a house at 1866 East Clementine Street in
Philadelphia, where he poured lighter fluid on the first floor and ignited it. The
resulting fire caused the death of the victim, who was in the second floor
bedroom at the time. The fire marshal determined the fire was a result of
arson and incendiary by nature. A forensic pathologist determined the victim’s
death was caused by inhalation of products of combustion. Trial Ct. Op.,
11/19/19, at 3, citing N.T. Guilty Plea H’rg, 6/25/18, at 29-31.
On August 14, 2017, Appellant gave a video confession to Philadelphia
police detectives, where he stated that he went into the home, poured the
lighter fluid on a couch, and lit it on fire. Appellant’s girlfriend also gave a
written statement to police that she observed Appellant take a bottle of lighter
fluid and walk outside saying “that he was going to light the house on fire.”
Trial Ct. Op. at 3, citing N.T., 6/25/18, at 32-34.
The trial court summarized the procedural history as follows. On June
25, 2018, the date set for trial, Appellant entered a negotiated guilty plea
murder of the third degree and possessing an instrument of crime2 (PIC). In
exchange for this plea, the Commonwealth agreed to withdraw charges of
first- and second-degree murder, both of which carried a mandatory life
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2 18 Pa.C.S. § 907(a).
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sentence without the possibility of parole. Trial Ct. Op. at 7, citing N.T.,
6/25/18, at 53-54. On the same day, the trial court
imposed concurrent sentences of 15 to 30 years[’] incarceration
for the third degree murder charge and 1 to 2 years[’]
incarceration for the PIC charge[.]
Thereafter, [Appellant] filed a pro se motion to withdraw his
guilty plea, [docketed on July 11, 2018,] in which he claimed that
his plea counsel, James Lammendola, Esquire [(Plea Counsel)],
was ineffective. [Plea Counsel] subsequently filed a motion to
withdraw as counsel, which the [c]ourt granted on July 26, 2018.
Thereafter, Lee Mandell, Esquire was appointed as counsel.
On June 13, 2019, due to irreconcilable differences between
[Appellant] and Mr. Mandell, the [c]ourt relieved Mr. Mandell from
representing [Appellant]. On June 14, 2019, while [Appellant’s
pro se] motion to withdraw his guilty plea was still pending before
the Court, [Appellant] filed a pro se petition under the Post
Conviction Relief Act[3] (“PCRA”), again claiming that [Plea
Counsel] was ineffective.
On June 19, 2019, [Appeal Counsel] was appointed to
represent [Appellant]. At a hearing held on September 27, 2019,
[Appeal Counsel] withdrew the PCRA petition, and elected to
proceed on the pending motion to withdraw the guilty plea.
Although the motion had been filed with the [c]ourt more than 10
days after sentencing, and was therefore untimely, see
Pa.R.Crim.P. 720(A)(1), the [c]ourt granted counsel’s request to
accept the motion as timely filed nunc pro tunc, since [Appellant]
had attempted to withdraw the plea within the 10 day period by
writing to the District Attorney’s Office.[4 N.T., 9/27/19, at 11.]
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3 42 Pa.C.S. §§ 9541-9546.
4 As Appellant was sentenced on June 25, 2018, he had 10 days, or until July
5th, to file a motion to withdraw his plea. See Pa.R.Crim.P. 720(A)(1),
(B)(1)(a)(i) (written post-sentence motion to withdraw plea shall be filed no
later than 10 days after imposition of sentence). This Court noted, however,
that Appellant’s envelope to the trial court bore a postal service cancellation
date of July 6th. Thus, this Court issued a rule to show cause on November
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At the hearing, [Appellant] contended that his plea was
involuntary since [Plea Counsel] was not prepared for trial and
had not conducted an adequate investigation. [N.T. 9/27/19, at
10-11.] At the conclusion of the hearing, the [c]ourt denied
[Appellant]’s motion to withdraw his guilty plea.
[Appeal Counsel] filed a Notice of Appeal on [Appellant]’s
behalf on September 27, 2019. On October 5, 2019, [Appeal
Counsel] filed a statement of intent to file a brief pursuant to
Anders . . . and [Santiago], on the ground that an appeal would
be wholly frivolous[. See] Pa.R.A.P. 1925(c)(4) (authorizing
counsel to file a statement of intent to file an Anders/Santiago
brief if there are no arguably meritorious issues for review).
Trial Ct. Op. at 1-2 (paragraph break added). Appellant has not filed a pro se
brief or retained new counsel for this appeal.
As stated above, Appeal Counsel has filed with this Court an Anders
brief and petition to withdraw from representation. This Court cannot address
the merits of issues raised on appeal without first reviewing a request to
withdraw. Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super.
2013) (en banc). To withdraw from representation on appeal,
[c]ounsel must: 1) petition the court for leave to withdraw stating
that, after making a conscientious examination of the record,
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25, 2019, why the appeal should not be quashed pursuant to
Commonwealth v. Capaldi, 112 A.3d 1242 (Pa. Super. 2015) (trial court
must expressly grant permission to file post-sentence motion nunc pro tunc
within 30 days of sentencing). Order, 11/25/19. Appeal Counsel filed a
response, stating the pro se motion should be deemed timely filed under the
prisoner mailbox rule. See Commonwealth v. Jones, 700 A.2d 423, 426
(Pa. 1997) (under prisoner mailbox rule, pro se filing by incarcerated
defendant will be deemed filed on date he deposited it with prison authorities
or placed it in prison mailbox). On December 4, 2019, this Court discharged
our rule to show cause.
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counsel has determined that the appeal would be frivolous; 2)
furnish a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel or
raise additional arguments that the defendant deems worthy of
the court’s attention.
Id.Here, Appeal Counsel’s Anders brief states he made a conscientious
review of the record and concluded that there are no non-frivolous issues.
Anders Brief at 7, 11. Appeal Counsel further states he notified Appellant
that he was seeking to withdraw from representing him, furnished Appellant
with copies of his petition to withdraw, Anders brief and Pa.R.A.P. 1925(c)(4)
statement, and informed Appellant of his right to retain new counsel or
proceed pro se to raise any issues he believes this Court should consider.
Thus, Appeal Counsel has satisfied the procedural requirements of Anders.
See Cartrette, 83 A.3d at 1032.
Next, we consider whether Appeal Counsel’s Anders brief meets the
substantive requirements of Santiago:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (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.
See Cartrette, 83 A.3d at 1032.
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Instantly, Appeal Counsel provides the procedural history and facts of
the case. Additionally, he states Appellant wishes to challenge the
voluntariness of his guilty plea, but Appeal Counsel concludes that the issue
is wholly frivolous. Anders Brief at 8-9. In support, Appeal Counsel explains
the trial court conducted a thorough colloquy explaining the maximum
sentence; and Appellant admitted to the underlying facts, signed a written
colloquy form, and stated his plea was not forced. Counsel concludes there is
no manifest injustice associated with the trial court’s ruling not to allow
Appellant to withdraw his guilty plea. Id. at 8, 9-11. Thus, Appeal Counsel
has complied with the substantive requirements of Santiago. See Cartrette,
83 A.3d at 1032.
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super.
2008) (citation omitted).
Here, Appellant claims his plea was unknowing and involuntary. Anders
Brief at 8. Appeal Counsel explains that Appellant claims his confession was
coerced by a corrupt Philadelphia Police detective, James Pitt, and his plea
was involuntary “because [P]lea [C]ounsel had not properly subpoenaed a
known witness and City of Philadelphia files on Detective Pitts.” Id. Appellant
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further contends he is innocent of, and had no motive to commit, the
underlying crimes. Id.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
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).
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:
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(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?
(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).
Addressing Appellant’s claims regarding Detective Pitts, the trial court
reasoned:
[T]he record refutes [Appellant]’s claim that he was forced into
entering his guilty plea. [N.T., 9/27/19 at 52.] At the hearing on
the motion to withdraw [Appellant]’s guilty plea, [Appellant]
testified that Detective Pitts . . . threatened to arrest [Appellant]’s
girlfriend and take away their children unless [Appellant]
confessed to the crime. [Id. at 13. Appellant] also claimed that
when his girlfriend was brought into the interrogation room, she
told him that Detective Pitts had made the same threat to her
unless she gave a statement against [Appellant. Id. at 14, 21.]
Further, [Appellant] testified that a witness named Derrick
Alexander would testify that he was in the second floor of the
home during the fire and that he believed another individual set
fire to the home because he and this individual had been in
multiple arguments. [Id. at 35-36, 43.] According to [Appellant],
on the day of his guilty plea, [Plea Counsel] told him that he could
not win the case and that he was not prepared to mount a defense
at trial because he did not have any information on Detective Pitts
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and was not able to contact any witnesses. [Id. at 15-16.
Appellant] claimed that he did not want [Plea Counsel] to continue
to represent him. [Id. at 16.] According to [Appellant], he felt
forced to enter into the guilty plea so that he could then file a
PCRA petition, claim [Plea Counsel] was ineffective, withdraw his
guilty plea, and then get another attorney appointed to represent
him. [Id. at 16-18.]
Trial Ct. Op. at 5. The trial court, however, found Appellant’s claims meritless.
The court summarized that when it
first attempted to conduct a guilty plea colloquy[, Appellant]
stated that he was going to reject the offer since he did not have
adequate time to discuss it with his family, but asked the [c]ourt
for some additional time to speak with [Plea C]ounsel. [N.T.,
6/25/18, at 15-18.] After that, he once again expressed a desire
to plead guilty, but again changed his mind during the colloquy.
[Id. at 36-37.] At that time, the [c]ourt advised [Appellant] that
the trial would go forward and argument was heard on pretrial
motions. [Id. at 37-49.] However, after returning from a one
hour lunch break, [Appellant] informed the [c]ourt that he did in
fact wish to plead guilty. [Id. at 49-50.] The [c]ourt did not
pressure [Appellant] to [plead.]
Id. at 6.
We further note the following exchange:
THE COURT: . . . [T]he reason that we’re going through
this discussion . . . which we call a colloquy, is so that I can be
sure before I accept your plea that you’re doing so voluntarily.
And if I don’t believe that it’s voluntarily tendered, I won’t accept
it. So it’s very unlikely after having a colloquy like this that you
would get anywhere with a higher court on that ground. Do you
understand that, sir?
[Appellant]: Yes, sir.
* * *
THE COURT: [J]ust so there’s no confusion, I know that an
hour and a half ago you decided you didn’t want the deal, you
have changed your mind now and want the deal. If you go
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forward — and in a minute here I’m going to tell my crier to go
ahead and arraign you. And once I do that and you say guilty,
okay, at that point you would have pleaded guilty, you’re not
going to have a trial, we’re going to go forward to sentencing, you
won’t be able to come back at a later time and say, you know, I
change my mind again, now I want to have my trial. If you feel
like that, now is the time you have to tell me. If you tell me that
now, I’ll allow you to go forward with motions and have your trial.
Do you want to go forward and plead guilty at this time?
[Appellant]: Yes, sir.
N.T., 6/25/18, at 22-23, 55-56.
After reviewing the trial court’s opinion and the certified record, we
conclude Appellant has not established manifest injustice justifying the
withdrawal of his guilty plea. See Pollard, 832 A.2d at 522. Thus, the record
establishes that Appellant knowingly and voluntarily entered his guilty plea,
and we discern no non-frivolous issue that Appellant could raise on appeal.
See Wimbush, 951 A.2d at 382; Rush, 909 A.2d at 808-09.
For the above-stated reasons, we grant Appeal Counsel’s petition to
withdraw, and affirm Appellant’s judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judge Colins joins the memorandum.
Judge Shogan concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2020
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