Com. v. Armour, S.

J-S30043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SOKOUR ARMOUR
Appellant No. 3451 EDA 2013
Appeal from the Judgment of Sentence June 20, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012008-2011
CP-51-CR-0012012-2011
CP-51-CR-0012013-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JUNE 8, 2015
Appellant Sokour Armour appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his
convictions for attempted murder, persons not to possess firearms, burglary,
aggravated assault, and simple assault.1 After careful review, we affirm.
The trial court accurately sets forth the relevant facts of this appeal as
follows:
On September 14, 2011, at 5063 Parrish Street in
Philadelphia, [Appellant] became engaged in an argument
with the complainant, Angelick Hyman, the mother of his
six year old son. Appellant, who had accused the
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1
18 Pa.C.S. §§ 901 (2502), 6105, 3502, 2702, and 2701, respectively.
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complainant of cheating on him, also complained that he
wanted to transfer her children to another school. When
Ms. Hyman stated that she would think about it,
[Appellant] became enraged and punched her twice with a
closed fist in her left eye causing a small bruise. Ms.
Hyman’s 14 year old daughter called the police. Police
officers arrived at the property - however [Appellant] fled
through the back of the premises upon their arrival.
Following this incident, the complainant obtained a
protection from abuse order from Family Court at 34 South
11th Street with reference to [Appellant]. This order was
served upon [Appellant] and remained active on
September 20, 2011, the date relevant to the two
remaining cases.
On September 20, 2011, at approximately 10:15 a.m.,
[Appellant] went to the home of the complainant, Ms.
Hyman, at 1214 West Susquehanna Avenue, where she
was residing with her son, Michael Wright, who is also a
complainant. [Appellant] began banging on the door and
front window. After telling her son not to let [Appellant]
in, Ms. Hyman went upstairs to call the police. [Appellant]
punched out the first floor window of the home and
entered the property with a gun in his hand. He proceeded
directly up to the second floor rear bedroom, kicked open
the door, straddled Ms. Hyman with his legs on her
stomach and began to pistol whip her. [Ms. Hyman’s] son,
Michael Wright, came upstairs with a baseball bat and hit
[Appellant] in the back, in an effort to get him off of his
mother. In response, [Appellant] turned around, fired his
weapon twice, shooting the complainant, Michael Wright,
in the face. Following this, the complainant, Michael
Wright, crawled out of the home and collapsed on a street
corner, bleeding from his face. Medics responded and
were able to transport him to Temple University Hospital.
As a result of being shot, a bullet entered the side of the
complainant’s nostril, went through the top part of his jaw,
through his tongue, and ended up lodged in the bottom
portion of his jaw. Consequently, he had to undergo
reconstructive surgery for his jaw in addition to dental
work to repair his injuries.
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Trial Court Opinion, filed June 30, 2014, at 2-3 (citations to the record
omitted).
On May 21, 2012, after completing written and oral colloquies,
Appellant pled guilty to attempted murder, persons not to possess firearms,
burglary, aggravated assault, and simple assault. On May 31, 2012,
Appellant filed a motion to withdraw his guilty plea.2 The court conducted
hearings on the motion on December 14, 2012 and March 18, 2013. The
court then denied the motion.
On June 20, 2013, the court sentenced Appellant to consecutive
sentences of 20-40 years’ incarceration for attempted murder, 10-20 years’
incarceration for burglary, 5-10 years’ incarceration for aggravated assault,
5-10 years’ incarceration for persons not to possess firearms and 1-2 years’
incarceration for simple assault, resulting in an aggregate sentence of 41-82
years’ incarceration.
On July 9, 2013, Appellant filed a post-sentence motion challenging
the court’s decision to deny his motion to withdraw his guilty plea. 3 On
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2
On May 31, 2012, Appellant’s mother filed a letter on his behalf requesting
the court to grant Appellant the right to change his plea from “guilty” to “not
guilty.” The court treated this letter as Appellant’s motion to withdraw his
guilty plea.
3
On July 2, 2013, the court granted Appellant’s motion to file post-sentence
motions out of time, and enlarged the time period in which he could file a
timely post-sentence motion by 60 days.
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November 6, 2013, Appellant’s post-sentence motion was denied by
operation of law. On November 27, 2013, Appellant timely filed a notice of
appeal.4 On December 12, 2013, the trial court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b) within 25 days of the order. Appellant timely complied on January
6, 2014.
Appellant raises the following issue for our review:
WHETHER THE LOWER COURT ABUSED ITS DISCRETION
IN DENYING [APPELLANT’S] MOTION TO WITHDRAW
GUILTY PLEA ON MARCH 18, 2013 WHERE THE
FOLLOWING FACTS AND CIRCUMSTANCES EXISTED,
NAMELY —
1. [APPELLANT’S] MOTION TO WITHDRAW GUILTY
PLEA WAS BOTH FILED AND HEARD BY THE LOWER
COURT PRIOR TO SENTENCING;
2. [APPELLANT] ASSERTED HIS INNOCENCE AS
PART OF HIS MOTION TO WITHDRAW GUILTY PLEA;
AND
3. [APPELLANT] WAS NOT MADE AWARE PRIOR TO
THE TIME THAT HE ENTERED HIS GUILTY PLEA THAT
HIS THEN DEFENSE COUNSEL, GEOFFREY SEAY,
ESQUIRE, SUFFERED A CONFLICT OF INTEREST IN
REPRESENTING APPELLANT DUE TO THE FACT THAT
MR. SEAY’S FATHER[,] ATTORNEY, HARRY SEAY,
ESQUIRE, WHO WAS A MEMBER OF GEOFFREY SEAY,
ESQUIRE’S LAW FIRM AT ALL TIMES RELEVANT
HERETO, HAD PREVIOUSLY REPRESENTED THE
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4
The appeal was timely because it was filed within 30 days of the entry of
the order denying Appellant’s timely post-sentence motion by operation of
law. See Commonwealth v. Green, 862 A.2d 613, 618 (Pa.Super.2004),
appeal denied, 882 A.2d 477 (Pa.2005); Pa.R.Crim.P. 720(A)(2)(b).
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COMPLAINANT AGAINST [APPELLANT], ONE
ANGELICK HYMAN, IN A SEPARATE ATTEMPTED
MURDER CASE[?]
Appellant’s Brief at 4.
In his sole issue, consisting of three sub-parts, Appellant challenges
the court’s decision to deny his motion to withdraw his guilty plea. Appellant
argues that because he asserted his innocence in a motion to withdraw his
guilty plea before the court imposed sentence, the court should have
granted his motion. Further, he claims that he only entered into the plea
due to the ineffective assistance of his counsel, who he alleges had a conflict
of interest because counsel’s father had previously represented one of
Appellant’s victims. Appellant concludes that he did not enter into the guilty
plea knowingly, intelligently, and voluntarily, and the court abused its
discretion by denying his motion to withdraw it. We disagree.
“[T]he law does not require that [the defendant] be pleased with the
outcome of his decision to enter a plea of guilty: All that is required is that
[his] decision to plead guilty be knowingly, voluntarily, and intelligently
made.” Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa.Super.2013)
(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192
(Pa.Super.2010), appeal denied, 9 A.3d 626 (Pa.2010) (alterations in
original)). A guilty plea colloquy must “affirmatively demonstrate the
defendant understood what the plea connoted and its consequences.” Id.
(quoting Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa.Super.1998)).
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No absolute right to withdraw a plea exists. Commonwealth v. Flick, 802
A.2d 620, 623 (Pa.Super.2002). After a defendant enters a guilty plea, “it is
presumed that he was aware of what he was doing, and the burden of
proving involuntariness is upon him.” Commonwealth v. Bedell, 954 A.2d
1209, 1212 (Pa.Super.2008).
For a guilty plea to be constitutionally valid, the defendant must
knowingly, intelligently, and voluntarily enter the plea; otherwise, a manifest
injustice has occurred. See Commonwealth v. Hodges, 789 A.2d 764,
765 (Pa.Super.2002) (“Manifest injustice may be established if the plea was
not tendered knowingly, intelligently, and voluntarily.”); Commonwealth
v. Fluharty, 632 A.2d 312, 314 (Pa.Super.1993) (“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.”). “Determining whether a defendant understood the
connotations of his plea and its consequences requires an examination of the
totality of the circumstances surrounding the plea.” Commonwealth v.
Moser, 921 A.2d 526, 529 (Pa.Super.2007).
“A valid plea colloquy must delve into six areas: 1) the nature of the
charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the
presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s
power to deviate from any recommended sentence.” Commonwealth v.
Morrison, 878 A.2d 102, 107 (Pa.Super.2005), appeal denied, 887 A.2d
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1241 (Pa.2005); Comment to Pa.R.Crim.P. 590(A)(2). A written plea
colloquy that is read, completed and signed by the defendant and made part
of the record may serve as the defendant’s plea colloquy when
supplemented by an oral, on-the-record examination. Morrison, 878 A.2d
at 108 (citing Comment to Pa.R.Crim.P. 590). Even if “there is an omission
or defect in the guilty plea colloquy, 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.”
Fluharty, 632 A.2d at 315. The entry of a negotiated plea is a “strong
indicator” of the voluntariness of the plea. Commonwealth v. Meyers,
642 A.2d 1103, 1106 (Pa.Super.1994). Further, “where 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.” Moser, 921 A.2d
at 529.
Instantly, Appellant entered into an open guilty plea after he signed
written colloquies and the court conducted an oral colloquy on the record.
See N.T., 5/21/12, at 5-17. Appellant’s counsel explained the nature of the
charges against Appellant and the sentencing ranges, and the prosecutor set
forth the factual basis of the plea. Id. at 14-28. Appellant’s counsel
apprised Appellant of his right to jury trial and his presumption of innocence.
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Id. at 7-12. Further, in his written colloquies, which were made part of the
record, Appellant acknowledged his understanding of the basis of the
charges, the rights he was voluntarily waiving, and the fact that the court
was not bound by the terms of any plea agreement unless it accepted a
specific agreement. Thus, the plea was constitutionally valid. See Hodges,
supra; Fluharty, supra; Morrison, supra.5
We next determine whether the trial court abused its discretion in
denying Appellant’s motion to withdraw his guilty plea before the imposition
of sentence.
“Although there is no absolute right to withdraw a guilty plea, properly
received by the trial court, it is clear that a request made before sentencing
… should be liberally allowed.” Commonwealth v. Unangst, 71 A.3d 1017,
1020 (Pa.Super.2013) (quoting Commonwealth v. Forbes, 299 A.2d 268,
271 ([Pa.]1973) (emphasis in original)).
We employ the following standard of review in a challenge to a trial
court’s decision regarding a presentence motion to withdraw a guilty plea:
“A trial court's decision regarding whether to permit a
guilty plea to be withdrawn should not be upset absent an
abuse of discretion. An abuse of discretion exists when a
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5
To the extent Appellant argues his plea was not knowing and voluntary due
to his lawyer’s conflict of interest and failure to properly prepare for trial, we
note that claims of ineffective assistance of counsel are to be deferred to
collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576
(Pa.2013).
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defendant shows any ‘fair and just’ reasons for
withdrawing his plea absent ‘substantial prejudice’ to the
Commonwealth.” Commonwealth v. Pardo, 35 A.3d
1222, 1227 (Pa.Super.2011) (quoting Commonwealth v.
Prysock, 972 A.2d 539, 541 (Pa.Super.2009); citing
Commonwealth v. Anthony, 475 A.2d 1303, 1308
([Pa.]1984)). In its discretion, a trial court may grant a
motion for the withdrawal of a guilty plea at any time
before the imposition of sentence. Pa.R.Crim.P. 591(A).
Commonwealth v. Elia, 83 A.3d 254, 261-62 (Pa.Super.2013), appeal
denied, 94 A.3d 1007 (Pa.2014).
Thus,
in determining whether to grant a pre-sentence motion for
withdrawal of a guilty plea, the test to be applied by the
trial courts is fairness and justice. If the trial court finds
any fair and just reason, withdrawal of the plea before
sentence should be freely permitted, unless the
prosecution has been substantially prejudiced. As a
general rule, the mere articulation of innocence is a fair
and just reason for the pre-sentence withdrawal of a guilty
plea unless the Commonwealth has demonstrated that it
would be substantially prejudiced.
Commonwealth v. Prendes, 97 A.3d 337, 351-52 (Pa.Super.2014) appeal
denied, 105 A.3d 736 (Pa.2014) (internal quotation marks and citations
omitted).
However, our jurisprudence has recognized that the denial of a pre-
sentence motion to withdraw a guilty plea is proper “where the evidence
before the court belies the reason offered.” Commonwealth v. Tennison,
969 A.2d 572, 578 (Pa.Super.2009) (citing Commonwealth v. Michael,
755 A.2d 1274 (Pa.2000)). In Tennison, the trial court denied a
defendant’s motion to withdraw his guilty plea because it did not believe the
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defendant was genuinely asserting his innocence. Id. at 575. The
defendant conditionally asserted his innocence, and his counsel stated that
“there would be no motion to vacate a guilty plea in the event that [the
defendant’s pending Federal charge that could affect the defendant’s
sentence] is resolved…”. Id. at 574. Although the defendant claimed
innocence as the basis for his motion, the trial court found he was trying to
get the best possible deal and did not believe the defendant’s assertion of
innocence. Id. at 575-76. This Court affirmed, reasoning:
Statements made both by counsel and Appellant during
proceedings undermined the credibility of the assertion of
innocence made to the court. Under the specific facts of
this case, therefore, we cannot hold the court erred as a
matter of law when it determined the assertion was simply
pretextual, and thus failed to provide a fair and just reason
to set aside Appellant’s guilty plea.
Id. at 578.
In Tennison, this Court held that a defendant does not always provide
a “fair and just reason” to withdraw his plea prior to sentencing simply by
asserting his innocence. Tennison, 969 A.2d at 573. Rather, “such an
assertion does not divest a judge of discretion to weigh its sincerity
according to the totality of circumstances known to the judge, and to deny
the motion where…the motion is founded not upon a sincere assertion, but
upon a desire to delay sentencing in one case in order to obtain a favorable
sentence in another.” Id.
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In the instant case, Appellant filed a pro se motion to withdraw the
guilty plea on the ground that he entered into the plea only because his
counsel was not prepared to go to trial. The court convened hearings in
which Appellant asserted his innocence, and the Commonwealth countered
with evidence that Appellant indicated his willingness to accept a 7-20 year
sentence if his motion to withdraw his guilty plea was granted. The court
then reasoned:
THE COURT: I’m going to deny [Appellant’s] motion to
withdraw the guilty plea. I don’t believe [Appellant] has a
sincere desire or motivation. It’s not based on a sincere
desire for a so-called fair trial. I believe he negotiated a
sentence, and principally he wrote a letter to the
prosecutor after the open plea saying I want a 7 to 20
year, and I will take it. That is not an assertion of
innocence. That is an assertion of a negotiation for a
sentence after a plea of guilty was entered into by the
defendant, followed by, “Why would I take an open plea
when I can get 7 to 20?” It’s negotiated. It not an
assertion of innocence. I believe [Appellant] is using this
procedure to negotiate a sentence. For that reason, I
believe that it is supported by the law. There is no
absolute right, and the [Tennison] case indicates that
there is no absolute right to withdraw a guilty plea. It has
to be based on certain circumstances.
N.T., 3/18/13, at 12-13.
The trial court further reasoned:
Considering the totality of the circumstances, this [c]ourt
denied [Appellant’s] [m]otion to [w]ithdraw his [g]uilty
[p]lea. This [c]ourt found that [Appellant’s] motion, in
which he asserted his innocence, was nothing more than a
mechanism by which he hoped to get a better deal. While
the motion was pending, [Appellant] was actively engaged
in an attempt to negotiate with the District Attorney’s
Office by stating that he would be willing to accept a 7-20
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year sentence. These were hardly the actions of a man
who was unequivocally asserting his innocence.
Consequently, this [c]ourt did not find that [Appellant] had
presented a fair and just reason to withdraw his plea.
Trial Court Opinion at 8-9.
Considering that there is no absolute right to withdraw a guilty plea,
under the circumstances of this case, we see no abuse of discretion in the
trial court’s decision that Appellant’s assertion of innocence was pretextual,
and that he failed to present a fair and just reason to withdraw his plea.6
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2015
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6
Because Appellant failed to present a fair and just reason to withdraw his
plea, we need not determine whether the Commonwealth would have
suffered substantial prejudice.
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