Commonwealth v. Blango , 2016 Pa. Super. 234 ( 2016 )

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2016 PA Super 234COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TYLER J. BLANGO
Appellant No. 3269 EDA 2015
Appeal from the Judgment of Sentence dated June 12, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007282-2014
BEFORE: BOWES, J., OTT, J., and SOLANO, J.
OPINION BY SOLANO, J.: FILED OCTOBER 31, 2016
Appellant Tyler J. Blango appeals from the judgment of sentence
imposed by the trial court after Appellant pled guilty to third-degree murder,
conspiracy to commit third-degree murder, carrying a firearm without a
license, carrying a firearm on the streets of Philadelphia, and possessing an
instrument of crime.1 On appeal, Appellant asserts that the trial court erred
when it denied his pre-sentence petition to withdraw his guilty plea. After
careful review, we affirm.
Appellant entered an open guilty plea on August 28, 2014. The trial
court summarized the underlying facts as follows:
The factual basis proffered by the Commonwealth for
[Appellant’s] guilty plea, to which [Appellant] agreed,
established the following: On April 11, 2013, a group of high
school students associated with the Lansdowne section of
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1
18 Pa.C.S. §§ 2502(c), 903(c), 6106, 6108, and 907, respectively.
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Philadelphia, and a group of high school students associated with
the Wynnefield section of Philadelphia, met at the Tustin
Playground adjacent to Overbrook High School, in order for one
student from each school to engage in a fistfight. The group
included [Appellant] and his co-defendants Rahim Pleasant,
Jaquan Jordan, and Stanley Postell. While Jordan and another
student were fighting, Postell made a comment that he had a
firearm and would use it. Postell and [Appellant] both pulled out
firearms during the course of the fistfight. Postell fired his
weapon at least five times, while [Appellant] was attempt[ing] to
fire his own weapon, which failed to fire. Pleasant and Jordan
also drew firearms and fired them. During the course of this
firefight, a spectator to the fight, Bernard Scott, was struck once
in the chest by a bullet that came from Postell’s firearm. Scott
was transported to Lankenau Hospital, where he was pronounced
dead. [Appellant] was struck by a bullet in the hip during the
firefight. Police ultimately recovered multiple firearms, including
[Appellant’s] firearm, which was a .38 caliber pistol.
Trial Court Opinion, 12/11/15, at 2 (footnote and citation to notes of
testimony omitted).
Appellant was charged with the aforementioned offenses. As noted
above, Appellant entered a guilty plea on August 28, 2014. As part of his
plea agreement, Appellant agreed to cooperate with the Commonwealth by
testifying against two of his co-defendants, Jaquan Jordan and Stanley
Postell. Id. at 4.2 In addition, Appellant agreed to provide information
regarding an unrelated shooting involving an individual named Glenn Long,
who was also known as “Big Dog” or “Glenn Mole.” N.T., 8/28/14, at 31.
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2
On July 11, 2014, the Commonwealth filed a Notice of Joint Trial in which it
expressed the intention to try Appellant with co-defendants Postell, Jordan,
and Rahim Pleasant, pursuant to Rule 582 of the Rules of Criminal
Procedure.
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Appellant was called to testify at Long’s trial on April 9, 2015, but
repudiated the information he had provided implicating Long, and then
threatened Long as he left the witness stand. N.T., 6/12/15, at 30-31. As a
result, the Commonwealth presented the trial court with a sentencing
memorandum in which it requested that Appellant be sentenced to 35–70
years’ incarceration. Id. at 30, 35. A day later, on May 15, 2015, Appellant
filed a pre-sentence motion to withdraw his guilty plea. On June 12, 2015,
the trial court denied Appellant’s motion and sentenced him to an aggregate
24–48 years’ incarceration. Appellant filed a post-sentence motion for
reconsideration of sentence on June 17, 2015, and the trial court denied that
motion on October 1, 2015. Appellant then filed this timely appeal.
On appeal, Appellant presents a single issue for our review:
Whether the [trial] court erred when it denied [Appellant’s]
petition to withdraw guilty plea?
Appellant’s Brief at 5.
Preliminarily, we recognize that at “any time before the imposition of
sentence, the court may, in its discretion, permit, upon motion of the
defendant, or direct sua sponte, the withdrawal of a plea of guilty or nolo
contendere and the substitution of a plea of not guilty.” Pa.R.Crim.P 591(A).
The Supreme Court of Pennsylvania recently clarified the standard of review
for considering a trial court’s decision regarding a defendant’s pre-sentence
motion to withdraw a guilty plea:
[T]rial courts have discretion in determining whether a
withdrawal request will be granted; such discretion is to be
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administered liberally in favor of the accused; and any
demonstration by a defendant of a fair-and-just reason will
suffice to support a grant, unless withdrawal would work
substantial prejudice to the Commonwealth.
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1285, 1291–92 (Pa.
2015) (holding there is no per se rule regarding pre-sentence request to
withdraw a plea, and bare assertion of innocence is not a sufficient reason to
require a court to grant such request).3 We will disturb a trial court’s
decision on a request to withdraw a guilty plea only if we conclude that the
trial court abused its discretion. Commonwealth v. Gordy, 73 A.3d 620,
624 (Pa. Super. 2013).
Within the argument section of his brief, Appellant contends that the
trial court erred in denying his request to withdraw his plea because he is
“actually innocent,” and the Commonwealth breached the terms of the
“cooperation agreement.” Appellant’s Brief at 9-10. Appellant further states
that the Commonwealth “breached the terms of the cooperation agreement
by questioning the Appellant without counsel and contrary to an oral
agreement.” Id. at 10.
First, we note that Appellant fails to expand upon, detail, cite to the
record, or otherwise develop his general claim of innocence and allegation of
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3
In contrast, after the court has imposed a sentence, a defendant may
withdraw his guilty plea “only where necessary to correct a manifest
injustice.” Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super.
2014).
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a breached agreement, causing these claims to be waived.
Commonwealth v. Bavusa, 832 A.2d 1042, 1052 (Pa. 2003) (reiterating
that claims for which arguments are undeveloped are waived). We further
note that, apart from waiver, both Appellant and the Commonwealth
reference Carrasquillo, in which our Supreme Court explained that a
“defendant’s innocence must be at least plausible to demonstrate, in and of
itself, a fair and just reason for presentence withdrawal of a plea.” 115 A.3d
at 1292. The Commonwealth persuasively rebuts Appellant’s broad
assertion of innocence as follows:
[Appellant’s] assertion of innocence was implausible. At
the time he made it, he had already testified against his former
co-defendants, Stanley Postell and Jaquan Jordan (N.T. 9/18/14
at 14-108). During this testimony, [Appellant] admitted that he
was the first one to pull the trigger.
The timing of [Appellant’s] motion adds to its
implausibility. On April 9, 2015, pursuant to his cooperation
agreement, [Appellant] was called to testify against Glenn Long.
During testimony, he recanted his written statement to police
implicating Long, claiming that it was fabricated. As he left the
witness stand, he threatened Long, saying “When I touch down,
you better strap up” (N.T. 6/12/15 at 27-35; Commonwealth’s
Sentencing Memorandum at 2). The Commonwealth responded
to this breach of the cooperation agreement by submitting a
sentencing memorandum requesting a sentence of thirty-five to
seventy years’ incarceration (See Commonwealth’s Sentencing
Memorandum, p. 4). On May 15, 2015, one day later,
[Appellant] filed a motion to withdraw his guilty plea. Clearly,
[Appellant] had not suddenly realized his innocence on that date,
but was motivated by the prospect of a lengthy prison sentence.
[Appellant’s] assertion of innocence was thus an attempt
to manipulate the system. [Commonwealth v.] Tennison,
969 A.2d [572,] 573 [(Pa. Super. 2009)] (assertion of innocence
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is not “fair and just” reason for withdrawal when it is founded
upon a desire to manipulate the system).
Commonwealth’s Brief at 8-9. We agree. We conclude that Appellant did
not make a plausible claim of innocence and that the trial court did not
abuse its discretion in declining to permit withdrawal of Appellant’s guilty
plea on that ground.
With respect to Appellant’s claim that the Commonwealth breached the
cooperation agreement, we have reviewed the record, including Appellant’s
written plea colloquy and the notes of testimony from Appellant’s plea
hearing. During the hearing, the trial court addressed Appellant as follows:
THE COURT: Now, aside from the fact that the
Commonwealth in exchange for your guilty
plea and in accordance with the memorandum
of agreement[4] that was signed by you, your
attorney and the district attorney on August
26th, 2014, two days ago; aside from the
understanding of everything that is set forth in
that agreement – and I expect the DA will go
into a little bit more detail with you about what
you have to do. But there are certain
requirements that you have to comply with
such as testifying truthfully and not
withholding any information. In exchange, the
Commonwealth has agreed to you plea[ding]
to these reduced charges rather than face the
charge of first degree murder.
Do you understand that?
[APPELLANT]: Yes.
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4
The memorandum of agreement is not in the record.
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N.T., 8/28/14, at 16-17.
The Commonwealth subsequently addressed Appellant:
[COMMONWEALTH]: Do you remember reviewing and signing
a memorandum of agreement just two
days ago on August 26, 2014?
[APPELLANT]: Yes.
[COMMONWEALTH]: And where was that done?
[APPELLANT]: In your office.
[COMMONWEALTH]: Was your attorney present when that
happened?
[APPELLANT]: Yes.
[COMMONWEALTH]: Did you in fact read over the four-page
memorandum agreement?
[APPELLANT]: Yes.
[COMMONWEALTH]: And are those your initials at the bottom
of each page?
[APPELLANT]: Yes.
[COMMONWEALTH]: Is that your signature at the end?
[APPELLANT]: Yes.
[COMMONWEALTH]: Just prior to signing the memorandum
agreement, do you remember providing
two statements? One statement
regarding the incident, the shooting on
Tustin Playground?
[APPELLANT]: Yes.
[COMMONWEALTH]: And another statement regarding a
defendant who goes by the name of Big
Dog, Glenn Mole?
[APPELLANT]: Yes.
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[COMMONWEALTH]: And did you have an opportunity to
review each of those statements?
[APPELLANT]: Yes.
[COMMONWEALTH]: And are both of those statements signed
by you?
[APPELLANT]: Yes.
[COMMONWEALTH]: Do you have any corrections or changes
you would like to make to either of
those?
[APPELLANT]: No.
N.T., 8/28/14, at 30-32.
Thereafter, Appellant verbally entered his guilty plea on the record,
and the trial court indicated that sentencing would be deferred. The
Commonwealth noted that, with regard to Appellant’s co-defendants, the
“trial date is September 15th.” N.T., 8/28/14, at 34. Relative to a date for
Appellant’s sentencing, the Commonwealth stated, “If we need to put a date
in, what I would suggest is we put in September 29th. . . . The trial [of the
co-defendants] should be over and that way we don’t have any issues.” Id.
The trial court responded, “[N]ow sentencing is scheduled for September
29th. But understanding that on that date sentencing may not take place.”
Id.
Based on the foregoing, we find no merit to Appellant’s broad and
unsubstantiated claim that the Commonwealth breached a cooperation
agreement. Appellant communicated to the Commonwealth that at the trial
of Long he would testify in accordance with his pretrial statement to police.
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Instead, he recanted that pretrial statement and threatened Long as he left
the witness stand. As a result, counsel for the Commonwealth stated the
following at Appellant’s sentencing:
It’s [] clear to me that [Appellant,] as demonstrated by his
behavior on the date of the murder, as demonstrated up to the
day of that murder and demonstrated by his behavior up until
last week, speaks in one direction and one direction only, that he
is a highly intelligent manipulative dangerous violent person.
There can be no question about that, none.
...
He sat down in my office with my detectives and his attorney,
and I explained to him how I felt personally and how I felt
professionally, and then he saw the memorandum that I wrote
asking for 35 to 70 years.
Even armed with all that understanding so vividly of what
the consequences are, he was called to testify and instead of
trying to do the right thing, instead of trying to do his best to
undo the damage that he continually causes, he got up on the
stand and says, no, I lied, screw you guys, I’m getting 35 to 70,
I don’t give a damn. I quite frankly, Judge, was shocked. I was
shocked when he did what he did in court.
...
He saw an opportunity to cut Glen Long loose and thinks
he would be out shortly after so that he can go out and do
whatever he wants to do on the street. He was less interested in
the justice system [than] taking out his personal revenge on
Glen Long.
The compunction, the sheer audacity in open court, this is
not somebody sneaking a letter, somebody sending a message.
He walked out of that courtroom on his way into the wall and in
open court and said, when I touch down, you better strap up.
Judge, that’s appalling. Of all the violence and all the
nasty and dirty things that the Court has seen, we have all
experienced . . . I have never seen or heard something like that
happen, certainly not with a person who had every incentive,
who at every stage of his life had someone pulling for him.
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N.T., 6/12/15, at 28, 30-31. Based on the record before us, the trial court
could conclude that it was Appellant, and not the Commonwealth, who
breached the cooperation agreement.
Finally, we turn to Appellant’s claim that withdrawal of his guilty plea
would not prejudice the Commonwealth. Appellant’s Brief at 7-11. Even if
there is a “‘fair and just reason’ to permit withdrawal of a guilty plea,
withdrawal should not be permitted if “the prosecution has been
‘substantially prejudiced.’” Commonwealth v. Forbes, 299 A.2d 268, 271
(Pa. 1973). It is settled law that “prejudice,” in the withdrawal of a guilty
plea context, requires a showing that, due to events occurring after the plea
was entered, the Commonwealth is placed in a worse position than it would
have been had trial taken place as scheduled. Commonwealth v. Kirsch,
930 A.2d 1282, 1286 (Pa. Super. 2007). For example, substantial prejudice
exists if a defendant obtains “a full preview of the Commonwealth’s evidence
before deciding upon [his] trial strategy.” Commonwealth v. Prendes, 97
A.3d 337, 353 (Pa. Super. 2014).
Here, the trial court explained that it denied Appellant’s request to
withdraw his guilty plea because there would be such prejudice. Trial Court
Opinion, 12/11/15, at 4. The Commonwealth echoes the trial court, stating
that Appellant “was able to preview the entirety of the Commonwealth’s
case.” Commonwealth’s Brief at 11. The Commonwealth also observes
that, “if allowed to withdraw his plea, [Appellant] would have effectively
obtained extrajudicial severance from his co-defendants.” Id. at 9.
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Appellant concedes that his two co-defendants have already been
tried, but responds: “[T]he Commonwealth has the duty to provide the
Appellant with all of the evidence that it wishes to present against him prior
to trial. The Appellant fails to understand how the Commonwealth would be
prejudiced since it has the burden of proof to prove each and every element
of each crime beyond a reasonable doubt.” Appellant’s Brief at 10-11.
Our review once again reveals no abuse of discretion by the trial court.
In determining that the Commonwealth would be prejudiced by the
withdrawal of Appellant’s guilty plea, the trial court explained:
The issue for me is whether or not there is substantial prejudice.
I looked at the [parties’] briefs here on both sides of this
equation, and I think unquestionably there is substantial
prejudice to the Commonwealth based on the facts as they
occurred here. . . .
Some of the things I agree with defense counsel are not
determinative, but taking everything together, I think the
Commonwealth is overwhelmingly prejudiced.
This is a situation where you have a case going forward.
Everybody’s joined and properly tried together. [Appellant] cuts
a deal, cooperates, testifies and attempts to withdraw after the
entire case has been tried after viewing the Commonwealth’s
entire case requiring the Commonwealth to place the entire case
before a different jury once again.
I mean, for one thing, that would be a way to get a
severance. You plead guilty and then afterwards move to
withdraw your plea after the trial is over.
As the Commonwealth points out, the situation has
changed with several of their witnesses. Wilmer Colon has an
open murder case, has now been convicted of third degree
murder.
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Antoine Gardener has open theft cases. He was convicted
of felony theft. Now he’s in custody. Rahim Pleasant was a
cooperating witness with no agreement as to sentence and had
an open case. He’s now been sentenced. Stanley Postell has
been convicted of first-degree murder. That’s over, and Mr.
Jordan’s trial is over. Witness Basil Harrison had an open
robbery. This is in the Commonwealth’s memorandum.
Those are substantial changes, and even setting all that
aside, the mere fact that [Appellant] got himself out of the joint
trial, now gets a chance to view the Commonwealth’s entire case
and then wishes to withdraw his plea and go forward because
he’s unhappy with a sentencing recommendation of the
Commonwealth after he reneged on his plea agreement, I have
– I have no doubt – at least it’s my firm belief that that is clear
substantial prejudice, and for that reason, [Appellant’s] motion
to withdraw the guilty plea is denied.
N.T., 6/12/15, at 3-5.
Mindful of the trial court’s reasoning, we once again reference Kirsch,
supra, in which we stated:
Our research reveals that there exists little case law explaining
what constitutes prejudice in the withdrawal of a guilty plea
context. Nevertheless, despite the dearth of caselaw, it would
seem that prejudice would require a showing that due to events
occurring after the plea was entered, the Commonwealth is
placed in a worse position than it would have been had trial
taken place as scheduled. [FN5: Along these lines, in
Commonwealth v. Campbell, 309 Pa.Super. 214, 455 A.2d
126, 128 (1983), we described the prejudice standard as being
satisfied “where the prosecution substantially relies upon the
plea to its detriment.”] This follows from the fact that the
consequence of granting the motion is to put the parties back in
the pre-trial stage of proceedings. This further follows from the
logical proposition that prejudice cannot be equated with the
Commonwealth being made to do something it was already
obligated to do prior to the entry of the plea.
930 A.2d at 1286.
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In applying Kirsch, we agree that “the consequence of granting the
[withdrawal] motion is to put the parties back in the pre-trial stage of
proceedings.” 930 A.2d at 1286. Here, however, if the trial court had
permitted Appellant to withdraw his plea, the parties could not have been
returned to the pre-trial stage of proceedings because, among other
reasons, Appellant had testified at two of his co-defendants’ trials and
“previewed” the Commonwealth’s case. In addition, Appellant’s two co-
defendants (Jaquan Jordan and Stanley Postell) had already been convicted
and sentenced, while Appellant’s third co-defendant (Rahim Pleasant) had
entered a plea and had been sentenced.
Of further significance is the fact that allowance of the withdrawal of
the guilty plea would have resulted in Appellant gaining “extrajudicial
severance from his co-defendants.” Commonwealth Brief at 9; see also
N.T., 6/12/15, at 4. The trial court expressly noted that Appellant “never
applied” for a severance, “which the Court would not have granted.” Trial
Court Opinion, 12/11/15, at 4. Given this scenario, we find no abuse of
discretion by the trial court in determining that the Commonwealth would
have been substantially prejudiced by the withdrawal of Appellant’s plea.
Accordingly, after thorough review, we conclude that the trial court did
not abuse its discretion when it denied Appellant’s pre-sentence motion to
withdraw his guilty plea.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2016
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