Com. v. Sheriff, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MOMO SHERIFF :
:
Appellant : No. 2277 EDA 2019
Appeal from the Judgment of Sentence Entered March 28, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005752-2017
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: JANUARY 25, 2021
Momo Sheriff (Appellant) appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his guilty
plea to attempted murder, possessing an instrument of crime (PIC), and
firearms not to be carried without a license.1 Appellant argues the court erred
in denying his pre-sentence motion to withdraw his guilty plea, where he
presented fair and just reasons and the Commonwealth would not be
substantially prejudiced. We affirm.
The Commonwealth presented the following facts at the plea hearing:
[H]ad this case proceeded to trial, [the Commonwealth] would
have presented several witnesses. The evidence would have
shown that on April 6[,] 2017, at approximately [2:00] in the
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 901, 907, 6106.
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morning, at the area of 5700 Florence Street[, Appellant] got into
an argument with his girlfriend[, Tanisha McGlond].
After this argument, there was a physical altercation, the
culmination of which was [Appellant] taking out a firearm, for
which he did not have a permit to carry, and firing at least four
shots.
One of the bullets struck [McGlond], went through her right
leg, the other one struck her in the buttock, and the third one
went through her abdomen and was [lodged] in her back. That
bullet remains in her body today. . . .
The evidence would also show that there was a [78-year old2]
witness who heard a female voice say, [w]hy did you do that, and
a male voice saying, [b]ecause you didn’t listen.
But for the neighbors calling 911 and the speedy actions of
the police officers, it’s doubtful whether the complainant would
have survived. And that is why we are [ ] proceeding with the
Attempted Murder [charge].
N.T., Guilty Plea, 8/28/18, at 8-9. Appellant agreed to this recitation of the
facts. Id. at 10. He also acknowledged he understood “[t]here’s a possibility”
he may face deportation. Id. at 7. Furthermore, we note the Commonwealth
possessed a surveillance video that captured the incident. N.T., 3/14/19, at
11. Appellant entered an open guilty plea to attempted murder, PIC, and
firearms not to be carried without a license.
Prior to sentencing, Appellant filed a pro se motion to withdraw his guilty
plea on January 7, 2019, and a counseled motion to withdraw guilty plea on
February 26th. The trial court conducted a hearing on March 14th, at which
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2 N.T., Motion to Withdraw Guilty Plea, 3/14/19, at 13.
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Appellant raised a claim of innocence. Appellant claimed he and McGlond were
leaving a bar, and Appellant thought another individual was “pulling out a gun
so [Appellant] fire[d] shots at that individual, and [McGlond] may have been
struck in the crossfire.” N.T., 3/14/19, at 6. Appellant maintained he “never
ever intended to harm [McGlond].” Id. at 6-7. Additionally, Appellant raised
an issue with McGlond’s ability to observe who shot her, and Appellant argued
he was “never told” his “offenses [were] automatically deportable.” Id. at 7-
9. The Commonwealth responded that Appellant’s claim of self-defense is “at
odds with . . . the surveillance video,” and that if Appellant “was truly not
intending to shoot her [but] was aiming at someone else,” he would have
called 911 and waited, rather than leaving before police arrived. Id. at 11-
12. Commonwealth also pointed to, as consciousness of guilt, Appellant
promising McGlond $10,000 in exchange for her promise not to testify against
him. Id. at 12. Lastly, the Commonwealth alleged it would be substantially
prejudiced due to the age of its 78 year old eyewitness, the time that had
passed since Appellant’s plea, and the emotional toll that testifying would
inflict on McGlond due to past domestic violence allegedly suffered at
Appellant’s hand. Id. at 13-14. The court denied Appellant’s motion to
withdraw his plea. Id. at 16.
This case proceeded to sentencing on March 28, 2019. Appellant first
orally requested the trial court to reconsider the denial of his motion to
withdraw his plea. Appellant argued he sent letters to his prior counsel,
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requesting to withdraw his plea due to counsel’s inadequate representation
and Appellant’s “suffering from mental illnesses as well as some medication
that [Appellant] was on.” N.T. Sentencing, 3/28/19, at 6-7. Due to being
“left in the dark” by prior counsel, Appellant claimed the court should “look at
the timing of when [Appellant] asked to withdraw the plea[.]” Id. at 7.
Appellant also claimed he was not “properly advis[ed] . . . with regards to
immigration consequences.” Id. The court again denied Appellant’s request
to withdraw his plea. The court then sentenced Appellant to 20 to 40 years’
imprisonment and seven years’ probation. Id. at 12, 34.
Appellant filed a timely post-sentence motion, which was denied on July
24, 2019. Appellant took this timely appeal and complied with the trial court’s
order to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Appellant presents the following single issue for our review:
Did the trial court err in denying [Appellant’s] motion to withdraw
his guilty plea when the request was made prior to sentencing, he
presented fair and just reasons for the withdrawal of his plea, and
the Commonwealth was not substantially prejudiced in reliance
upon [Appellant’s] plea?
Appellant’s Brief at 4.
Appellant avers the court abused its discretion in denying his motion to
withdraw his guilty plea because he presented fair and just reasons to do so.
Appellant’s Brief at 10. Appellant claims he stated a “colorable claim of
innocence:” that he was acting in self-defense and fired his gun at another
person whom Appellant “believed was reaching for a firearm to shoot him.”
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Id. at 9, 11. Appellant states he “never, at any point, admitted” to
intentionally shooting McGlond. Id. at 12. Appellant also recounts that
McGlond initially told detectives she was not “sure who shot her, and told
medical staff “she was drinking and [did not] remember the details of the
shooting.” Id. at 11. Appellant claims he did not enter into his plea knowingly
or voluntarily because: he suffered from mental illnesses, including
schizophrenia and memory loss; and plea counsel did not inform him that his
charges were “automatically deportable[,]” but instead only that deportation
was a “possibility”3 Id. at 13-15.
Lastly, Appellant argues the Commonwealth’s allegation, that it would
suffer prejudice, is based on “mere speculation[s]” and “assertion[s.]”
Appellant’s Brief at 17-18. Appellant maintains the Commonwealth presented
no evidence that its 78 year old witness’s memory would be impaired due to
the passage of time, nor an adequate reason why McGlond would not be able
to testify at trial. Id. at 17. Appellant rejects the trial court’s reasoning that
allowing him to withdraw his plea would grant him “an unfair advantage,”
where the plea would have been withdrawn before the presentation of the
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3 Appellant also avers the trial court did not inform him of the presumption of
innocence, in violation of Pa. R. Crim. P. 590. However, he did not raise this
claim in his Rule 1925(b) statement. Thus, it is waived. See
Commonwealth v. Muhammad, 794 A.2d 378, 382 n.9 (Pa. Super. 2002).
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Commonwealth’s case in chief and any evidence he has already received was
required under Brady.4 Id. at 18.
We note the relevant standard of review and authority:
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. 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). “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.” The
policy underlying this liberal exercise of discretion is well-
established: “The trial courts in exercising their discretion must
recognize that ‘before judgment, the courts should show solicitude
for a defendant who wishes to undo a waiver of all constitutional
rights that surround the right to trial — perhaps the most
devastating waiver possible under our constitution.’” [O]ur
Supreme Court instructed that, “in determining whether to grant
a presentence motion for withdrawal of a guilty plea, ‘the test to
be applied by the trial courts is fairness and justice.’”
Commonwealth v. Elia, 83 A.3d 254, 261-62 (Pa. Super. 2013) (citations
omitted). However, this Court has stated:
[T]he individual’s fundamental right to a trial requires a liberal
granting of pre-sentence motions to withdraw guilty plea. Yet, it
has also recognized there is no absolute right to a pre-sentence
withdrawal of a plea, and has issued clear holdings that the denial
of such a motion is proper where the evidence before the court
belies the reason offered.
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4Brady v. Maryland, 373 U.S. 83 (1963) (stating suppression of evidence
by the state violates due process).
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Commonwealth v. Tennison, 969 A.2d 572, 578 (Pa. Super. 2009) (citation
omitted).
This Court has explained:
“[A] mere, bare, or non-colorable assertion of innocence is
insufficient, in and of itself, to support withdrawal of a plea.” . . .
[A] defendant’s innocence claim must be at least
plausible to demonstrate, in and of itself, a fair and just
reason for presentence withdrawal of a plea. More
broadly, the proper inquiry on consideration of such a
withdrawal motion is whether the accused has made
some colorable demonstration, under the circumstances,
such that permitting withdrawal of the plea would
promote fairness and justice.
Commonwealth v. Islas, 156 A.3d 1185, 1189 (Pa. Super. 2017) (citations
omitted).
After determining a “fair and just” reason for withdrawing exists, the
court must determine if upon granting the motion, the Commonwealth would
experience a “substantial prejudice.” Islas, 156 A.3d at 1188.
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.’ 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.
Id. at 1192, quoting Commonwealth v. Blango, 150 A.3d 45, 51 (Pa. Super.
2016). This Court has previously explained that substantial 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.” Islas, 156 A.3d at
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1192 (citations omitted). The question “is whether, at the time [a defendant]
moved to withdraw his plea, the prosecution would have been substantially
prejudiced by being required to try its case.” Id. at 1193.
Finally, we note: “A defendant is bound by the statements made during
the plea colloquy, and a defendant may not later offer reasons for withdrawing
the plea that contradict statements made when he pled.” Commonwealth
v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012).
Here, the trial court found Appellant did not raise “fair and just reasons”
to withdraw. The trial court found Appellant’s claim that he presented a
plausible claim of innocence “utterly lacking in merit.” Trial Ct. Op. at 5.
Further, the trial court found:
[A]ppellant’s assertion of innocence was implausible. He claimed,
inter alia, that the victim, who was [his] long time paramour, was
under the influence of intoxicating substances when the incident
occurred and, at first, did not identify him as the person who shot
her to police. He further relied on his statement to police wherein
he stated that he had been involved in a fight inside a bar just
prior to the incident herein and that he fired his gun when he
thought that a third man was reaching for a gun as evidence of
his innocence. [N.T., 3/14/19, at 5-7.] Appellant was well aware
of this evidence when he pleaded guilty and yet still knowingly,
voluntarily, and intelligently decided to plead guilty. In addition,
the record shows that [A]ppellant averred during the guilty plea
hearing that he agreed with the Commonwealth’s recitation of the
facts. [N.T., 8/28/18 at 10].
Moreover, the Commonwealth’s evidence included a video
recording and letters [A]ppellant wrote to the victim herein asking
her to send [A]ppellant’s attorney a letter stating that she was not
going to appear at [A]ppellant’s trial in exchange for $10,000.[
N.T., 3/14/19, at 12.] That recording captured much of the
incident and did not depict a third person. It also showed that
following the shooting, [A]ppellant did not assist the victim, which
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is something one would expect him to do had the shooting been
accidental. [T]he letter clearly manifested consciousness of guilt.
The Commonwealth also had witnesses available to testify on
its behalf who would have implicated [A]ppellant in the crime. For
all of those reasons, this Court determined that [A]ppellant failed
to present a plausible claim of innocence[.]
Id. at 6-7. This finding is well within the trial court’s discretion and we will
not disturb it on appeal. See Elia, 83 A.3d at 261.
We also find no abuse of discretion in the trial court’s rejection of
Appellant’s claims that he did not enter his plea knowingly or voluntarily.
While Appellant has diagnosed mental illnesses, the trial court concluded those
illnesses did not impact the colloquy:
During the hearings on [A]ppellant’s withdrawal motion, [he]
argued, inter alia, that he should be permitted to withdraw his
plea because he suffered from mental illness and was taking
medication at the time he entered his plea which rendered him
incapable of entering a valid plea. [N.T., 3/28/19, at 6-7.] This
Court rejected that claim based on the record herein. A review of
the guilty plea hearing indicates that [A]ppellant not only reviewed
with the assistance of counsel a guilty plea colloquy form that
asked if he was suffering from some malady that prevented him
from understanding the nature of the proceedings, he also
indicated during the oral colloquy that he understood the nature
of the proceedings, that he was not under the influence of an
intoxicating substance that prevented him from understanding
what he was doing, and that while he suffered from a mental
illness, he understood what was then occurring. [N.T., 8/28/18,
2-7.]
The foregoing establishes that [A]ppellant entered his plea
knowingly, intelligently, and voluntarily and that his mental illness
and any medication he was taking did not affect his cognitive
functions to a degree that rendered him incapable of entering a
valid guilty plea. . . .
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Trial Ct. Op. at 4. Further, “[Appellant] is bound by the statements made
during the plea colloquy and [ ] may not later offer reasons for withdrawing
the plea that contradict statements made when he pled.” Id. at 3, citing
Brown, 48 A.3d at 1277
The trial court also determined the Commonwealth would suffer
prejudice, where there were concerns regarding the eyewitness’ memory and
the emotional toll of having the victim testify after a significant amount of time
had passed. Trial Ct. Op. at 7-8, quoting Commonwealth v. Prendes, 97
A.3d 337, 352 (Pa. Super. 2014) (“[P]rejudice 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.”). Similarly, this conclusion was within the discretion afforded to
the trial court and will not be disturbed on appeal.
Finally, we do not reach Appellant’s claim that his plea counsel failed to
adequately inform him the guilty plea would result in automatic deportation.
See Appellant’s Brief at 15. To the extent Appellant argues counsel was
ineffective, see id. (“[Appellant] did not receive sufficient legal counseling.”),
such a claim, as the trial court noted, should be raised pursuant to the Post
Conviction Relief Act5 (PCRA). See Commonwealth v. Grant, 813 A.2d 726,
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5 42 Pa.C.S. §§ 9541-9546.
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738 (Pa. 2002) (claims relating to ineffective assistance of counsel should be
brought under the PCRA); Trial Ct. Op. at 5.
The trial court acted within its discretion in denying Appellant’s motion
to withdraw his guilty plea, and the trial court’s findings are supported by the
record. See Tennison, 969 A.2d at 578. Thus, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/21
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