Com. v. McIntosh, M. ( 2018 )

J-S41039-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MYRON FALIK MCINTOSH :
:
Appellant : No. 2052 EDA 2017
Appeal from the Judgment of Sentence May 23, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001950-2017
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 11, 2018
Appellant, Myron Falik McIntosh, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his
negotiated guilty plea to one count of false identification to law enforcement.1
We affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
Upper Darby police responded to the report of Siobhan Andrews, on the
afternoon of June 19, 2016, that Appellant was inside her residence. His
presence in the residence constituted a violation of a Protection From Abuse
(“PFA”) order that barred Appellant from the residence. When the police
arrived, they checked the apartment but could not locate Appellant. While
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1 18 Pa.C.S.A. § 4914 (graded as a third degree misdemeanor).
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* Former Justice specially assigned to the Superior Court.
J-S41039-18
outside, however, Ms. Andrews pointed to a male walking in the area and
identified him as Appellant. In full uniform, Officer Bennett approached
Appellant and advised him that Officer Bennett was investigating Appellant’s
alleged violation of a PFA order at Ms. Andrews’ residence and that Ms.
Andrews had identified Appellant as the violator. Officer Bennett then asked
Appellant if he was Myron McIntosh. Appellant denied it and said his name
was Aaron Johnson. Officer Bennett asked Appellant for identification;
Appellant said he did not carry any. Officer Bennett called attention to
Appellant’s wallet protruding from the rear pocket of his shorts. Appellant
produced his wallet, which contained credentials identifying him as Myron
McIntosh. (See Affidavit of Probable cause, filed 6/19/16.) The
Commonwealth charged Appellant with false identification to law enforcement.
On May 23, 2017, Appellant entered a negotiated guilty plea (including
sentence) to the offense charged. The court accepted the plea and imposed
the negotiated sentence of time served (ten days) to six months’ incarceration
and immediately paroled Appellant.2 At Appellant’s request, the court also
allowed Appellant to travel to Florida for involvement in his son’s athletic
activities.
Appellant timely filed a notice of appeal on June 21, 2017. The trial
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2 The certified record indicates Appellant later violated his parole and was
recommitted.
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court ordered Appellant on June 23, 2017, to file a concise statement of errors
complained of on appeal, per Pa.R.A.P 1925(b). Counsel timely filed a Rule
1925(c)(4) statement of intent to file an Anders3 brief. Counsel filed a
petition for leave to withdraw as counsel and an Anders brief in this Court on
May 23, 2018. Appellant has filed no response.
As a preliminary matter, counsel seeks to withdraw representation
pursuant to Anders, supra and Commonwealth v. Santiago, 602 Pa. 159,
978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition
the Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; (2)
file a brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
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3 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[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.
Id. at 178-79, 978 A.2d at 361. After verifying that counsel has met the
antecedent requirements to withdraw, this Court makes an independent
review of the record to confirm the appeal is wholly frivolous.
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also
Commonwealth v. Dempster, 2018 PA Super 121 (filed May 8, 2018) (en
banc).
Instantly, Appellant’s counsel filed a petition to withdraw, which states
counsel conducted a conscientious review of the record and determined the
appeal is wholly frivolous. Counsel also supplied Appellant with a copy of the
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brief and a letter explaining Appellant’s right to retain new counsel, or to
proceed pro se and raise any additional issues Appellant deems worthy. (See
Letter to Appellant, dated 5/23/18, attached to counsel’s application to
withdraw, filed on the same date). In the Anders brief, counsel provides a
summary of the facts and procedural history of the case. Counsel’s argument
refers to relevant law that might possibly support Appellant’s issue. Counsel
further states the reasons for his conclusion that the appeal is wholly frivolous.
Therefore, counsel has substantially complied with the requirements of
Anders and Santiago.
Counsel raises the following issue on Appellant’s behalf:
THE COMMONWEALTH FAILED TO PROVIDE SUFFICIENT
EVIDENCE THAT [APPELLANT] COMMITTED THE OFFENSE
OF FALSE IDENTIFICATION TO A LAW ENFORCEMENT
OFFICER FOR HIM TO BE CONVICTED. THE EVIDENCE WAS
INSUFFICIENT BECAUSE IT FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT [APPELLANT] WAS UNDER A
CRIMINAL INVESTIGATION BY THE OFFICERS OF THE
UPPER DARBY POLICE AND THAT THEY NOTIFIED HIM OF
THAT.
(Anders Brief at 5).
Appellant claims the evidence was insufficient to show the police
informed him that he was under investigation for a violation of the law and
the evidence was also unclear as to the nature of the investigation taking place
at the time of his arrest. Put another way, Appellant seems to be attacking
the factual basis for his plea. We conclude no relief is due.
“Generally, a plea of guilty amounts to a waiver of all defects and
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defenses except those concerning the jurisdiction of the court, the legality of
the sentence, and the validity of the guilty plea.” Commonwealth v.
Morrison, 173 A.3d 286, 290 (Pa.Super. 2017); Commonwealth v. Main,
6 A.3d 1026 (Pa.Super. 2010) (stating same). Thus, by entering a guilty plea
the defendant routinely waives an array of constitutional and appellate rights,
including a direct challenge to the sufficiency of the evidence, which is a non-
jurisdictional issue. See generally Commonwealth v. Lincoln, 72 A.3d
606, 610 (Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014).
Instead, the defendant must focus his complaint on the validity of the
plea proceedings and to test the voluntariness of his guilty plea on direct
appeal the defendant must either object during the plea colloquy or file a
motion to withdraw the plea before sentencing or within ten days of
sentencing. See id. See also Pa.R.Crim.P. 591 (allowing for application to
withdraw plea upon written or oral motion of defendant at or before
sentencing); Pa.R.Crim.P. 720 (allowing for post-sentence challenge to guilty
plea, and recommending that challenge be presented in post-sentence
motion, if not previously raised). Absent extraordinary circumstances, the
failure to employ either measure results in waiver. Commonwealth v.
Tareila, 895 A.2d 1266, 1270 n.3 (Pa.Super. 2006).
Historically, Pennsylvania courts adhere to this waiver
principle because “[i]t is for the court which accepted the
plea to consider and correct, in the first instance, any error
which may have been committed.” Commonwealth v.
Roberts, [352 A.2d 140, 141 (Pa.Super. 1975)] (holding
that common and previously condoned mistake of attacking
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guilty plea on direct appeal without first filing petition to
withdraw plea with trial court is procedural error resulting in
waiver; stating, “(t)he swift and orderly administration of
criminal justice requires that lower courts be given the
opportunity to rectify their errors before they are considered
on appeal”; “Strict adherence to this procedure could,
indeed, preclude an otherwise costly, time consuming, and
unnecessary appeal to this court”).
Lincoln, supra at 610 (holding defendant failed to preserve challenge to
validity of guilty plea where he did not object during plea colloquy or file post-
sentence motion to withdraw plea). Further, “a defendant who attempts to
withdraw a guilty plea after sentencing must demonstrate prejudice on the
order of manifest injustice before withdrawal is justified.” Id.
If the defendant properly preserves his opposition to the validity of the
plea process, courts evaluate “the adequacy of the plea colloquy and the
voluntariness of the resulting plea by examining the totality of the
circumstances surrounding the entry of that plea.” Commonwealth v.
Muhammad, 794 A.2d 378, 383-84 (Pa.Super. 2002). A guilty plea will be
deemed valid if that examination demonstrates the defendant had a full
understanding of the nature and consequences of his plea such that he
knowingly and intelligently entered the plea of his own accord.
Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006).
As part of the inquiry, courts examine the factual basis for the plea.
Commonwealth v. Fluharty, 632 A.2d 312, 315 (Pa.Super. 1993).
However, the “factual basis” requirement does not mean
that the defendant must admit every element of the crime.
In this respect, the United States Supreme Court has held:
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[W]hile most pleas of guilty consist of both a waiver
of trial and an express admission of guilt, the latter
element is not a constitutional requisite to the
imposition of criminal penalty. An individual accused
of crime may voluntarily, knowingly, and
understandingly consent to the imposition of a prison
sentence even if he is unwilling or unable to admit his
participation in the acts constituting the crime.
Nor can we perceive any material difference between
a plea that refuses to admit commission of the
criminal act and a plea containing a protestation of
innocence when, as in the instant case, a defendant
intelligently concludes that his interests require entry
of a guilty plea and the record before the judge
contains strong evidence of actual guilt.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160,
167, 27 L.Ed.2d 162, 171 (1970). See Commonwealth v.
Cottrell, 433 Pa. 177, 179, 249 A.2d 294, 295 (1969)
([stating:] “[W]here there is significant evidence of
guilt…and the accused, after adequate consultation with his
counsel, decides to plead guilty, that plea is not rendered
invalid merely because the accused is unable or unwilling to
detail the occurrence in court”).
Id. (some internal quotations and citations omitted). An affidavit of probable
cause can serve as a factual basis to support a guilty plea. See generally
Fluharty.
The Crimes Code defines the offense of false identification to law
enforcement as follows:
§ 4914. False identification to law enforcement
authorities
(a) Offense defined.−A person commits an offense if he
furnishes law enforcement authorities with false information
about his identity after being informed by a law enforcement
officer who is in uniform or who has identified himself as a
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law enforcement officer that the person is the subject of an
official investigation of a violation of law.
(b) Grading.−An offense under this section is a
misdemeanor of the third degree.
18 Pa.C.S.A. § 4914. This Court recently interpreted this statute to require
law enforcement, so identified by uniform or adequate communication, to
advise the defendant expressly that he is the subject of an official
investigation, before the defendant gives the offending false identification, in
order to sustain a conviction for false identification to law enforcement
authorities. Commonwealth v. Kitchen, 181 A.3d 337 (Pa.Super. 2018) (en
banc). The attendant circumstances alone are often inadequate to satisfy the
statute and support a conviction for false identification. Id.Instantly, there is no dispute that the Delaware County Court of
Common Pleas, Criminal Division, had jurisdiction over the offense and the
plea/sentencing proceedings, which all occurred in Delaware County. The
negotiated sentence imposed, of ten days to six months, was below the
statutory maximum of one year for a third-degree misdemeanor (see 18
Pa.C.S.A. § 1104(3)) and consistent with the plea agreement. To the extent
Appellant’s claim on appeal directly attacks the sufficiency of the evidence, he
waived it by entering the plea. See Lincoln, supra. To the extent Appellant’s
claim attacks the factual basis for his plea, Appellant did not object during the
plea proceedings or move to withdraw the plea, so he cannot dispute on
appeal the factual basis for his guilty plea. See id.-9-
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Moreover, the record belies Appellant’s claim. Officer Bennett was in
full uniform when he approached Appellant and advised him that Officer
Bennett was investigating Appellant’s alleged violation of a PFA order at Ms.
Andrews’ residence and that Ms. Andrews had identified Appellant as the
violator. When Officer Bennett asked Appellant his name, Appellant denied
he was Myron McIntosh and said he was Aaron Johnson. When Officer Bennett
asked Appellant for identification, Appellant said he did not carry any. Officer
Bennett observed Appellant’s wallet protruding from the rear pocket of his
shorts. Appellant produced his wallet, which contained credentials identifying
him as Myron McIntosh. As set forth in the affidavit of probable cause, these
circumstances comply with the statute and support Appellant’s plea to the
offense. See 18 Pa.C.S.A. § 4914; Kitchen, supra. Following an
independent review of the record, we agree with counsel that the appeal is
frivolous. Accordingly, we affirm and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/18
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