Com. v. Mathis, K.

J-S36030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYLE MATHIS :
:
Appellant : No. 3332 EDA 2017
Appeal from the Judgment of Sentence July 17, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012453-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 26, 2018
Appellant, Kyle Mathis, appeals from the July 17, 2017 Judgment of
Sentence entered in the Philadelphia County Court of Common Pleas following
his guilty pleas to one count each of Third-Degree Murder, Possessing
Instruments of Crime, Firearms Not to be Carried Without a License, and
Carrying Firearms in Public.1 Appellant’s counsel has filed an Anders2 Brief,
together with a Petition to Withdraw as Counsel. After careful review, we
affirm Appellant’s Judgment of Sentence and grant counsel’s Petition to
Withdraw.
The facts are, briefly, as follows. On July 25, 2015, Appellant killed
Darrin Ward, Jr., by shooting him multiple times in broad daylight, on a
____________________________________________
118 Pa.C.S. § 2502(c); 18 Pa.C.S. § 907; 18 Pa.C.S. § 6106; and 18 Pa.C.S.
§ 6108, respectively.
2 Anders v. California, 386 U.S. 738 (1967).
J-S36030-18
residential street where numerous eyewitnesses were sitting outside. The
shooting was in retaliation for the shooting of Appellant’s uncle by a close
associate of Ward.
Police arrested Appellant on August 26, 2015, in connection with a
separate Attempted Murder. During the course of their investigation of that
crime, ballistics experts matched shell casings from both crimes. Police
subsequently arrested Appellant and charged him with the instant crimes.
On July 17, 2017, Appellant entered a negotiated guilty plea to the
above-referenced charges. That same day, the court sentenced Appellant to
the negotiated aggregate term of 28 ½ years’ to 57 years’ incarceration.3
On July 25, 2017, Appellant filed a counseled Motion to Withdraw Guilty
Plea. Appellant’s Motion consisted of three enumerated paragraphs that
stated only the date of his conviction, the length of the sentence the court
imposed, and a bald assertion that he would like the court to permit him to
withdraw his guilty plea. See Motion, 7/25/17, at 1 (unpaginated). Appellant
did not allege any grounds to support his withdrawal request. See id.
The trial court denied Appellant’s Motion without a hearing on July 27,
2017.
This appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
____________________________________________
3 The court ordered Appellant to serve this sentence concurrently with a
sentence of 7 to 8 years’ incarceration that he is currently serving in a separate
case for convictions of Attempted Murder and firearms offenses.
-2-
J-S36030-18
On January 23, 2018, counsel filed the Anders Brief and Petition to
Withdraw as Counsel. Appellant did not file a pro se or counselled response
to either the Brief or the Petition.
As a preliminary matter, we address counsel’s Petition to Withdraw.
“When presented with an Anders brief, this Court may not review the merits
of the underlying issues without first passing on the request to withdraw.”
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citation
omitted). In order for counsel to withdraw from an appeal pursuant to
Anders, our Supreme Court has determined that counsel must meet certain
requirements, including:
(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
In the instant case, counsel has complied with all of the requirements
of Anders as articulated in Santiago. Additionally, counsel confirms that he
sent Appellant a copy of the Anders Brief, as well as a letter explaining to
Appellant that he has the right to proceed pro se or the right to retain new
counsel. See Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super
-3-
J-S36030-18
2005) (describing notice requirements). Counsel appended a copy of the letter
to his Petition to Withdraw.
Once counsel has satisfied the above requirements, it is then this Court’s
duty to conduct an independent review of the record to discern if there are
any additional, non-frivolous issues overlooked by counsel and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.
See Commonwealth v. Yorgey, ___ A.3d ___, 2018 Pa. Super. 136, *5 (Pa.
Super. filed May 24, 2018) (en banc) (noting that Anders requires the
reviewing court to “review ‘the case’ as presented in the entire record with
consideration first of issues raised by counsel.”).
Counsel raises the following issue in the Anders Brief:
Did the lower court err in denying [A]ppellant’s Motion to
Withdraw his guilty plea?
Anders Brief at 3.
The Honorable Rose Marie DeFino-Nastasi, who presided at Appellant’s
plea hearing, has authored a comprehensive and well-reasoned Opinion, citing
to the record and case law in addressing Appellant’s claim on appeal. After a
careful review of Appellant’s arguments and the record, we affirm on the basis
of the trial court’s Opinion, which concluded that (1) Appellant’s failure to
support his request to withdraw his guilty plea with any facts or reasons was
a sufficient basis to deny his Motion to Withdraw Guilty Plea; and (2) even if
Appellant had alleged that he entered his plea involuntarily, the record belies
that claim because (a) the court addressed all of the required factors at
-4-
J-S36030-18
Appellant’s plea colloquy; (b) Appellant received the benefit of his bargain;
and (c) Appellant exercised his right to allocute during which he expressed his
remorse and reaffirmed his guilt. See Trial Ct. Op., 10/31/17, at 4-6.
Accordingly, we agree with counsel and conclude that the issue raised
in the Anders Brief is wholly frivolous. Furthermore, our independent review
of the record confirms counsel’s assertion that Appellant cannot raise any non-
frivolous issues in this appeal. See Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super 2015) (requiring this Court to independently review
the record to ensure that counsel has not overlooked any additional non-
frivolous issues). Thus, we grant counsel’s Petition to Withdraw and affirm
Appellant’s Judgment of Sentence. The parties are instructed to attach a copy
of the trial court’s October 31, 2017 Opinion to all future filings.
Judgment of Sentence affirmed. Petition to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/18
-5-
0027_Opinion
Circulated 08/28/2018 12:03 PM
FILED
3 I 2017
7
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA nr-
Dffir.e Jt J11mc1al Records
CRIMINAL TRIAL DIVISION ,..,,�1Jt:,a.1stPost TriaJ
COMMONWEAL TH OF PENNSYL Y ANIA CP-5 l-CR-0012453-2015
v. 3332 EDA 2017
KYLE MATHIS '. -- - -------
CP-51-CR-0012453-2015 Comm
-·
v Mathis Kyle
Opinion
OPINION I
IIIIIIIIII I I I 111111111111
8023335081
Rose Marie DeFmo-Nastasi, J.
PROCEDURAL HISTORY
On July 17, 2017, Defendant entered into a negotiated plea agreement, pleading guilty to
Thud Degree Murder, 18 Pa.C.S. § 2502(c), as a felony of the first degree; Violation of the
Uniform Firearms Act (Firearms Not to be Carned Without a License), 18 Pa.C.S. § 6106, as a
felony of the third degree, Violation of the Um form Firearms Act (Carrying Firearms in Public),
18 Pa.C.S. § 6108, as a misdemeanor of the first degree; and Possession of an Instrument of
Crime (PIC), 18 Pa.C.S § 907, as a misdemeanor of the first degree. The same day, Defendant
was sentenced to twenty (20) to forty ( 40) years confinement for the Thud Degree Murder
conviction, three-and-a-half (3 .5) to seven (7) years confinement for the VUF A 6106 conviction,
two-and-a-half (2.5) to five (5) years confinement for the VUF A 6108 conviction, and two-and-
a-half (2 5) to five (5) years confinement for the PIC conviction. All sentences were ordered to
run consecutively makmg Defendant's aggregate sentence twenty-eight-and-a-half (28.5) to
fifty-seven (57) years confinement.1
I
The sentence for the Third Degree Murder conviction m this case was ordered to run concurrently to a seven (7) to
eighteen (18) year sentence Defendant is serving on a separate case (CP-5l-CR-0009922-2015) for a conviction for
Attempted Murder, VUFA 6106, and VUFA 6108
On July 25, 2017, Defendant filed a timely Motion to Withdraw his Guilty Plea without
stating any reasons as to why he wanted to do so.
On July 27, 2017, this Court denied Defendant's Motion to Withdraw his Guilty Plea
without a hearing.
On August 21, 2017, Defendant filed a timely Notice of Appeal to the Pennsylvania
Superior Court.
On October 6, 2017, Defendant filed a Rule l 925(b) Statement of Matters Complained of
on Appeal, pursuant to an Order of the Court. His claim is as follows:
I. The lower court erred and abused its discretion by denying Defendant's Motion to
Withdraw his Guilty Plea.
FACTS
On July 25, 2015 at 12:56 p.m. the Defendant, Kyle Mathis, killed the decedent, Darrin
Ward, Jr., by shooting him multiple times with a gun at 515 East Hill Creek Dnve in
Philadelphia, Pennsylvania. The shooting was in broad daylight, on a residential street, where
numerous eyewitnesses were sitting outside. The shooting was in retaliation for the shooting of
the Defendant's uncle by Stephan Brooks. The decedent was a close associate of Stephan
Brooks. Brooks was present on the scene but entered a house at the time of the shooting N.T.
07/17/17 at p. 26, 30.
The decedent was walking down East Hill Creek Drive when the Defendant called him
over. After a brief conversation, the decedent told the Defendant that he did not have anything to
do with what he was talking about. The Defendant then pushed the decedent and began shooting
at him, saying "you know what this is for." The decedent was then taken to Albert Einstein
Hospital and pronounced dead at 3:45 p.m. Id
2
Fourteen (14) fired 9mm cartridge casings (hereinafter referred to as FCC's) and three (3)
9mm bullets were found by police at the scene. Five (5) more 9mm bullets were recovered from
the body of the decedent at the hospital. Id at pp. 26-27.
Dr. Victoria Sorokm, a qualified expert in the field of forensic pathology, identified
nineteen (19) bullet entrance wounds on the decedent's body but noted that some of the entrance
wounds may have been re-entry wounds from other parts of his body (i.e. from the arm to the
torso). Dr. Sorokin confirmed that the cause of death was multiple gunshot wounds and the
manner of death was homicide. Id at pp. 27-28.
The Defendant was arrested on August 26, 2015 for a separate attempted murder that
took place in the 22nd Pohce Distnct in North Philadelphia. Nineteen (19) 9mm FCC's and one
(1) 9mm bullet were recovered from that cnme scene He was arrested at 2035 Berks Street in a
home that belonged to the mother of one of his children. Inside the home were an additional
seven (7) hve 9mm cartndges. Id at pp. 28-29.
On October 28, 2015, ballistics experts determined, to a reasonable degree of scientific
certainty, that the bullets from the crime scene at 515 East Hill Creek Dnve and the bullets from
the crime scene at 2035 Berks Streets were fired from the same 9mm gun. Id at pp 29-30.
The Defendant was identified by multiple witnesses, including Stephan Brooks, who
identified him by his nickname, Trouble, which is tattooed on the Defendant's arm. When the
shooting occurred, three (3) women and a seven (7) year old boy were within feet of the incident.
Another witness identified the Defendant from a double bhnd photo array where six (6) photos
were shown to the witness and the administrator of the array did not know the Defendant. Id at
p. 31.
3
ANALYSIS
Issue I
The lower court erred and abused its discretion by denying Defendant's Motion to
Withdraw his Guilty Plea.
"As there is no absolute right to withdraw a guilty plea, tnal courts have discretion in
determining whether a withdrawal request will be granted; such discretion is to be admmistered
Ii berally 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 .... The proper inquiry on consideration of a guilty plea withdrawal motion is
whether the accused has made some colorable demonstration, under the circumstances, such that
permitung withdrawal of the plea would promote fairness and justice." Com v Carrasquillo,
631 Pa. 692, 704-706 (Pa. 2015). "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 defendant shows any fair and just reasons
for withdrawing his plea absent substantial prejudice to the Commonwealth." Com v Elia, 83
A.3d 254, 261 (Pa. Super. 2013)
In his motion to withdraw his guilty plea, Appellant fails to set forth any fact to support
his request to withdraw his guilty plea. He merely makes a bald assertion that he would like to
withdraw his plea. The motion states the following:
"l On July 17, 2017, Petitioner entered a plea of guilty to Murder, etc.
2. In accordance with the negotiation between defense counsel and the
Commonwealth, Your Honor sentenced Petitioner to a term of 28.5-57 years in a
state correctional institution.
4
3. Petitioner respectfully requests that this Court allow him to withdraw his plea of
guilty, which he entered on July 17, 2017."
Defendant's Mallon to Withdraw Gutlty Plea, at p I, filed July 25, 2017. Defendant does not
claim, for instance, that he is innocent of the crime he pied guilty to, nor does he claim that his
guilty plea was the result of pressure, coercion, or misunderstanding. For this reason alone,
Defendant was not entitled to withdraw his guilty plea and it was not an abuse of discretion for
the Court to deny his motion to withdraw it.
Assuming arguendo that Defendant's claim was that his plea was involuntary, the record
belies that claim and Defendant's motion to withdraw his guilty plea fails to elucidate it. There
are six areas that Pennsylvania law requires trial courts to look into when examining the
voluntariness of a guilty plea. The trial court must inquire mto a defendant's understanding
regarding·
-1. The charges to which he is pleading guilty
-2. The factual basis for his plea
-3. The right to a tnal by jury
-4. The presumption of innocence
-5. The permissible ranges of sentences; and
-6. The fact that the judge is not bound by the plea agreement.
Com v McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)
All of these factors were addressed during Defendant's guilty plea colloquy. NT 07/17/17.
("Where the record clearly indicates that a guilty plea colloquy was conducted, dunng which it
became evident that the defendant understood the nature of the charges against him, the
5
voluntariness of the plea is established." Com v McCauley, 797 A.2d 920, 922 (Pa. Super.
2011).
Defendant also received the benefit of the bargain, in that, in exchange for pleading guilty
to Third Degree Murder, the Commonwealth did not charge Defendant with First Degree Murder
and pursue a life-sentence for the Defendant. ("The desire of an accused to benefit from a plea
bargain is a strong indicator of the voluntariness of his plea." Com v Pollard, 832 A.2d 517,
524 (Pa. Super 2003)). Evidence was presented by the Commonwealth which indicated that
Defendant shot the decedent in retaliation for the shooting of the Defendant's uncle. The
shooting took place in broad daylight and Defendant was identified by multiple eyewitnesses
Fourteen (14) 9mm FCC's were recovered from the crime scene and five (5) 9mm projectiles
were recovered from the decedent's body. Clearly, the ballistic evidence strongly corroborates
the specific intent to kill needed to prove Fust Degree Murder. Appellant pleaded guilty to Third
Degree Murder and removed himself from the very real possibility of a life sentence.
Finally, after the witness impact evidence was offered at sentencing, Defendant chose to
exercise his right of allocution, during which he expressed his remorse and reaffirmed his guilt
"Every case I had, my mom always told me, she always told me to man up. If I did
something, man up to it. If I didn't do nothing, don't JUSt fall for anything and I always
lived by that. So today that is what I did, I owned up for what I did and for the family,
that I'm truly sorry that it had to come down to this with this situation we are in nght now
but as long as they know that every day, even if they don't think about it, that they know
somebody is thinking about it because I can't let that out of my life because now it is a
part of my life."
6
N.T. 07/17/17 at pp. 47-48.
For all the reasons stated above, the Court did not err or abuse its discretion in denying
Defendant's Motion to Withdraw his guilty plea.
CONCLUSION
Based on the foregoing, the court's denial of the PCRA petition should be affirmed.
7
Commonwealth v. Kyle Mathis
CP-51-CR-OO 12453-2015
Opinion
Proof of Service
I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and in
the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P. 114:
Petitioner: Mr. Kyle Mathis, MN 5233
SCI Fayette
P.O. Box 9999
LaBelle, PA 15450-1050
Type of Service: ( ) Personal ( ) First Class Mail (x) Other, Please Specify: Certified
Counsel· Jason E. Parris, Karl Baker, Owen W. Larrabee, and Keir
Bradford-Grey, Esquires
Appeals Division
Defender Association of Philadelphia
1441 Sansom Street
Philadelphia, PA 19102
Type of Service: () Personal (x) First Class Mail () Other, Please Specify:
District Attorney: Philadelphia District Attorney's Office
Appeals Unit
Widener Bldg.
3 South Penn Square
Philadelphia, PA 19107
Type of Service. () Personal () First Class Mail (x) Inter-Office
Date: 10/31/2017
Law Clerk to the Honorabl