Com. v. Faixmel, K.

J-S53025-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH FAIXMEL :
:
Appellant : No. 899 EDA 2019
Appeal from the Judgment of Sentence Entered February 22, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003721-2018
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED: MARCH 26, 2021
Kenneth Faixmel, a/k/a Rashawn Spann,1 appeals from the judgment of
sentence, entered in the Court of Common Pleas of Philadelphia County,
following his plea of guilty to one count each of robbery2 and conspiracy to
commit robbery.3 We affirm; Faixmel’s issues on appeal were not properly
preserved in the trial court.
The trial court set forth the facts of the case as follows:
[O]n March 4, 2018, [Faixmel] forcibly held down and robbed the
complainant, who was a complete stranger to him, while his co-
conspirator and charged co-defendant, Archie Swinson, sexually
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* Retired Senior Judge assigned to the Superior Court.
1Appellant Faixmel’s legal name is Rashawn Spann. See N.T. Guilty Plea
Hearing, 11/5/18, at 8.
2 18 Pa.C.S.A. § 3701(a)(1)(i).
3 18 Pa.C.S.A. §§ 903; § 3701(a)(1)(i).
J-S53025-20
and severely physically assaulted her. On that date, the victim[],
at approximately 5:40 a.m., [] was walking westbound on the
1300 block of Lombard Street[,] in the City and County of
Philadelphia[,] on her way to work. [] Swinson jumped out from
behind her[,] grabbed her by the neck[,] and forced her into an
alley on South Watts Street. Once in the alleyway, [] Swinson
repeatedly punched the victim in the face, head and body,
strangled her, and forced her to the ground.
While [] Swinson was violently attacking her on the ground, []
Faixmel[] joined in the assault from Watts Street[] and forcibly
ripped the victim’s backpack from her back, took her cellphone
that she had clutched in her hand, and removed valuables out of
her backpack. [Faixmel] then ran up Watts Street and ultimately
down Pine Street. As [Faixmel] fled, [] Swinson continued to
punch th[e] now[-]disabled and prone [victim,] attempted to
remove her pants to vaginally rape her, and ultimately forced her
to perform oral sex upon him when the attempted rape became
too difficult for him to perform.
Th[e] victim suffered multiple physical injuries from the concerted
vicious attack[,] which required emergency and follow[-]up
medical treatment. [The victim] was transported via ambulance
directly from the scene to nearby Hahnemann Hospital []where x-
ray[] testing revealed severe head trauma[,] including a number
of lacerations to the back of her head [when she struck] the
concrete[ pavement during the assault. The victim’s face was
also] severely swollen [] from being savagely beaten.
[The victim’s] emergency medical treatment [] included the
sewing of five [] sutures or staples to the back of her head.
Corroborating photographs[, taken while the victim was still in the
hospital,] depict[] her significant injuries[,] particularly to her
orbital bone and surrounding portions of her eye[. The photos]
were [] introduced into evidence and viewed by th[e c]ourt. The
transcribed record unequivocally reflected [the victim’s] survival
of long[-]lasting mental and physical traumatic injuries.
Shortly after the attack, [] Philadelphia police officers[] recovered
surveillance video [footage] from [area] cameras[. U]pon viewing
[the video footage, police] recognized[,] and unambiguously
identified[,] Faixmel[] as one of the perpetrators. Upon
[Faixmel’s] arrest on March 8, 2018, during a post-Miranda[4]
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4 See Miranda v. Arizona, 384 U.S. 436 (1966).
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statement, [he] readily admitted his involvement in this violent
assault[,] but stressed that he had not raped the victim. [Faixmel]
[then] assisted police in identifying Swinson, whom he had known
for several years from living on the “street.”
As the [trial court d]ocket [s]ummaries reflected, upon arrest[,
Faixmel] was charged with first[-]degree felonies including:
aggravated assault[ and] robbery—inflict serious bodily injury[];
conspiracy to commit robbery—inflict serious bodily injury; [] rape
by forcible compulsion[]; attempted rape by forcible
compulsion[]; involuntary deviate sexual intercourse by forcible
compulsion[]; conspiracy to commit rape; strangulation—applying
pressure to throat or neck[]; and [other] related [] offenses.
From the outset, attorneys from the Defender Association of
Philadelphia were appointed to represent [Faixmel]. The []
Commonwealth [] presented a prima facie case [] on May 18,
2018[, and a]ll charges were held over [for court.] [The
Commonwealth then filed] commensurate bills of information []
on May 23, 2018.
Formal arraignment was conducted on May 31, 2018. From
arraignment[,] the case was assigned to the Honorable Robert
Coleman[,] [] for “Smart Room” pre-trial conferences[,] which
offered [Faixmel] the [opportunity to] request alternate forms of
case disposition in lieu of [proceeding to] trial. At the very least,
these conferences afforded [Faixmel] the opportunity to plead
guilty either before [Judge Coleman,] or before [Faixmel’s] then[-
]probation[-]supervising jurist[, the Honorable Rayford Means,]
pursuant to [Pennsylvania] Rules of Criminal Procedure 708(c)
and 701. [Faixmel] did not request any alternate form of case
disposition on May 31, 2018 o[r] June 19, 2018[, the date of a
subsequent pre-trial conference held before the court].
Moreover, at the [] June 19, 2018, [pre-trial conference, Faixmel],
by and through his attorney, again demanded a jury trial and
requested that the matter be sent to a major trial courtroom for
trial scheduling. As a result [of that request], this case was then
assigned to [the Honorable Anne Marie B. Coyle,] as the presiding
jurist[,] and [the court scheduled] the initial pre[-]trial conference
[] for July 30, 2018. On [that date, Faixmel, again], by and
through his attorney, Deborah Rainey, Esquire[,] demanded a jury
trial. Th[e c]ourt complied with the request and scheduled the
jury trial to begin on November 5, 2018. From [the] date of arrest
on March 8, 2018[,] through to November 8, 2018, [Faixmel]
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made [no requests, n]or [did he] even mention[ his desire to
pursue alternative means of] dispos[ition for] the case against
[him,] pursuant to [] Rules [] 708(c) and 701[.]
On the day of trial[,] November 5, 2018, [] the Commonwealth []
announced that it was ready to present its consolidated case
against [] co-defendants [] Faixmel and [] Swinson[.] Just before
jury voir dire was to begin, [Attorney] Rainey [] blatantly
attempted to delay the proceedings and forum shop [] by []
request[ing that Faixmel] tender a negotiated guilty plea before
[Judge Coyle,] specifically conditioned upon th[e c]ourt’s
agreement [] to transfer sentencing and supervision duties to
[Judge Means, following Judge Coyle’s acceptance of Faixmel’s
plea. Attorney Rainey’s] request was duly denied.
[] After further discussion, and pursuant to negotiations, the
charges were reduced and [Faixmel] tendered a knowing,
intelligently offered[,] and voluntary plea of guilty to [the above
charges as first-degree felonies]. As part of the negotiation[,]
sentencing [] was [deferred].
In exchange, [the Commonwealth] agreed to withdraw the
multiple remaining [charges.]
Additionally, a measure[-]of[-]cooperation condition was added to
the plea wherein [] Faixmel agreed to testify against [] Swinson.
[Faixmel]’s potential confinement sentencing exposure was
significantly reduced as a result of the negotiations[.]
On November 5, 201[8], after conducting a full oral colloquy[,]
and upon reviewing the [] fully incorporated and executed written
colloquy form, th[e c]ourt accepted [Faixmel’s] tendered guilty
plea as knowing[], voluntary[,] and intelligent[]. As part of this
plea[, Faixmel] waived any previously available pre-trial motions.
[Faixmel was] duly informed of all rights and responsibilities that
[wer]e attached to entering the guilty plea[, with regard to both
first-degree felonies of robbery and conspiracy,] including the
possible imposition of a maximum potential period of forty [] years
[] of state[-]supervised confinement[,] and payment [of] a
$50,000 fine[]. The salient facts and circumstances supporting
the entry of the guilty pleas to the two charges were succinctly
read into the record and fully admitted by [Faixmel] as being [a]
true and correct version of the events. [Faixmel declined his]
opportunity to amend or alter any of the submitted facts. []
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[] During the sentencing hearing conducted on February 21, 2019,
[Attorney] Rainey[] abruptly asserted an unsupported claim that
the first[-]degree felony robbery—inflict serious bodily injury
offense [] should be down-graded to [the] third[-]degree felony[
of] [r]obbery committed by “force however slight” because the
Commonwealth had not demonstrated the “serious bodily injury”
element. Furthermore, defense counsel then threatened that if
th[e c]ourt did not agree to reduce [the robbery charge] to a third-
degree gradation, [Faixmel] would withdraw his previously
entered guilty plea.
In response, [] Assistant District Attorney Velma Cubias,
Esquire[,] stated “this is a case where the complainant is grabbed
by [Swinson], dragged into an alleyway, and within . . . minutes,
[Faixmel] goes in there as the [victim] is being beaten and
sexually assaulted . . . as [the victim] is begging for her life,
[Faixmel] steals . . . her backpack[. T]hat is clearly a conspiracy:
one, to engage in that sexual assault, and that brutal beating of
that female, and two, to commit the robbery.” Th[e c]ourt [then]
noted that “more importantly, on the record[,] it was clearly
stated and reflected in the negotiated plea in its written form . . .
that this was a robbery, a felony of the first [] degree, and that
the conspiracy was also graded as a felony of the first [] degree.”
Moreover, th[e c]ourt [noted] that [Faixmel] had fully “admitted
to the underlying facts that included significant injury to this
complainant.” Thereafter, defense counsel fully conceded this
indefensible argument and agreed that “on the written colloquy
form, it says F1 conspiracy and robbery.” This claim was never
raised again.
Trial Court Opinion, 12/4/19, at 1-7 (internal citations and unnecessary
capitalization omitted).
At the conclusion of the hearing, the court sentenced Faixmel to two
consecutive terms of 8 to 20 years’ incarceration on the two counts, along
with various other conditions. Faixmel did not file a post-sentence motion;5
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5 Faixmel correctly notes that “notwithstanding [his] request—on the record—
that trial counsel file a motion to reconsider [Faixmel’s] sentence, trial counsel
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instead Faixmel filed a timely notice of appeal. Faixmel and the trial court
have both complied with Pa.R.A.P. 1925.
On appeal, Faixmel presents the following issues for our review:
1. Was not [Faixmel’s] guilty plea colloquy deficient, as the
evidence of record was insufficient to establish a factual basis for
the plea to the charge of conspiracy to commit robbery?
2. Did not the trial court err in denying [Faixmel]’s request,
pursuant to Pa.R.Crim.P. [] 708(C) and 701, to plead guilty and
be sentenced on his open matter before the judge already
supervising his probation on other cases, inasmuch as the plain
language of those [r]ules does not give the trial court the
discretion to deny such a request?
Appellant’s Brief, at 4.
We have previously explained that under Pennsylvania law,
by entering a plea of guilty, a defendant waives his right to
challenge on direct appeal all non[-]jurisdictional defects except
the legality of the sentence and the validity of the plea. In order
to preserve an issue related to a guilty plea, an appellant must
either object at the sentence colloquy or otherwise raise the issue
at the sentencing hearing or through a post-sentence motion.
Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468-69 (Pa. Super.
2017) (internal citations, quotations marks, and brackets omitted).
____________________________________________
did not file a post-sentence motion.” Appellant’s Brief, at 12; see also N.T.
Sentencing Hearing, 2/22/19, at 54. Nevertheless, Faixmel also concedes that
any issue relating to ineffective assistance of counsel arising from Attorney
Rainey’s representation, see Appellant’s Brief, at 24 n.8, is properly the
subject of a collateral appeal. See Commonwealth v. Holmes, 79 A.3d 562,
563 (Pa. 2013) (“[The] general rule of deferral to [] review [under the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546,] remains the pertinent law
on the appropriate timing for review of claims of ineffective assistance of
counsel[.]”).
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Here, Faixmel did not raise the issue of the validity of his guilty plea
until his Rule 1925(b) statement. This was too late, and thus, results in
waiver.6 See Monjaras-Amaya, supra at 469 (“The purpose of this waiver
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6 Faixmel argues that he raised the issue at his sentencing hearing, and
therefore, it is preserved. See Appellant’s Brief, at 8; see also N.T.
Sentencing Hearing, 2/22/19, at 8-21 (“If you’re not going to agree [that the
issue of gradation is decided at sentencing], we withdraw the plea. . . . If I
screwed up, then I screwed up. [Faixmel’s] understanding was a[ third-
degree felony] robbery and the conspiracy running along with that. That is
what I told him.”). Nevertheless, Faixmel’s threat to withdraw his plea did not
conclude with, or amount to, a specific objection, as is required. See
Monjaras-Amaya, supra; see also Commonwealth v. Lincoln, 72 A.3d
606, 609-10 (Pa. Super. 2013) (citing Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i))
(“A defendant wishing to challenge the voluntariness of a guilty plea on direct
appeal must either object during the plea colloquy or file a motion to
withdraw the plea within ten days of sentencing. Failure to employ
either measure results in waiver.”) (emphasis added). Indeed, the standard
for withdrawal of a guilty plea depends on the stage of the proceedings in
which the defendant seeks withdrawal. See Commonwealth v. Kpou, 153
A.3d 1020, 1022-23 (Pa. Super. 2016) (“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 [] and the
substitution of a plea of not guilty. . . . [I]n determining whether to grant a
pre-sentence motion for withdrawal . . . the test . . . is fairness and justice,”
whereas “[p]ost-sentence motions for withdrawal are subject to [manifest
injustice, which is subject to an increased degree of] scrutiny since courts
strive to discourage the entry of guilty pleas as sentencing-testing devices.”)
(internal brackets and quotation marks omitted).
Faixmel concedes that, pursuant to Pa.R.Crim.P. 590(C), “[t]here is no legal
basis to argue gradation at a sentencing hearing other than in homicide
matters.” Appellant’s Brief, at 9 n.4. Nevertheless, as already noted above,
see supra n.5, Faixmel’s ineffective assistance of counsel claims are not ripe
for appellate review on direct appeal. See Holmes, supra.
Moreover, even if not waived, we would find meritless Faixmel’s claim that his
guilty plea was “involuntary and unknowing[,] as [Faixmel] did not understand
the consequences of his plea.” Appellant’s Brief, at 24 n.8. Here, at the guilty
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rule is to allow the trial court to correct its error at the first opportunity, and,
in so doing, further judicial efficiency. It is for the court [that] accepted the
plea to consider and correct, in the first instance, any error [that] may have
been committed.”) (citation and internal quotations marks omitted); see also
Commonwealth v. Watson, 835 A.2d 786, 792 (Pa. Super. 2003) (“[A]
party cannot rectify the failure to preserve an issue by proffering it in response
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plea hearing, the court clearly informed Faixmel of the maximum penalties he
faced as a result of pleading guilty to the two first-degree felony charges. See
N.T. Guilty Plea Hearing, 11/5/19, at 18 (The court: “Do you understand that
by entering this plea of guilt to those two charges, the maximum potential
sentence with just those two charges is 40 years of confinement and a
$[5]0,000 fine?” Faixmel: “Yes.”); see also Commonwealth v. Yeomans,
24 A.3d 1044, 1047 (Pa. Super. 2011) (“[A] defendant may not challenge his
guilty plea by asserting that he lied while under oath, even if he avers that
counsel induced the lies. A person who elects to plead guilty is bound by the
statements he makes in open court while under oath and may not later assert
grounds for withdrawing the plea which contradict the statements he made at
his guilty plea colloquy.”) (brackets omitted). We note that Faixmel’s written
guilty plea colloquy clearly indicates his intention to plead guilty to robbery
and conspiracy as felonies of the first degree. See Written Guilty Plea
Colloquy, 11/5/18, at 1, 2; see also Commonwealth v. Flanagan, 854 A.2d
489, 513 (Pa. 2004) (“In determining whether a guilty plea was entered
knowingly and voluntarily, [] a court is free to consider the totality of the
circumstances surrounding the plea. . . . A court may consider a wide array
of relevant evidence under this standard including, but not limited to,
transcripts from other proceedings, off-the-record communications with
counsel, and written plea agreements.”) (internal quotation marks omitted).
Indeed, Faixmel concedes in his appellate brief that his plea was “a negotiated
plea with respect to the offenses and their gradations.” Appellant’s
Brief, at 11 n.9 (emphasis added). See also Commonwealth v. Stork, 737
A.2d 789, 790 (Pa. Super. 1999) (“[W]here 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.”) (internal quotation marks omitted).
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to a Rule 1925(b) order.”). Therefore, this issue is not preserved for our
review.
Faixmel’s second issue on appeal challenges Judge Coyle’s refusal to
allow him to plead guilty before her, and subsequently be sentenced by Judge
Means, pursuant to Faixmel’s own reading of Rules 708(C) and 701. See
Appellant’s Brief, at 25-32. This issue, too, is waived.
“[I]t is well established that absent a contemporaneous objection, the
issue is not properly preserved on appeal.” Commonwealth v. Melendez-
Rodriguez, 856 A.2d 1278, 1287 (Pa. Super. 2004); see also Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”). Pursuant to Pa.R.Crim.P. 720(B), “issues raised
in a timely optional post-sentence motion, provided those issues were
properly preserved at the appropriate point in the proceedings,” may
be considered on appeal. Melendez-Rodriguez, supra at 1189 (quoting
Commonwealth v. Kohan, 825 A.2d 702, 705-06 (Pa. Super. 2003))
(emphasis added).
Here, Faixmel neither specifically objected at the time Judge Coyle
denied his request, see N.T. Guilty Plea Hearing, 11/5/18, at 8-14, nor at the
time of his sentencing hearing before her.7 See N.T. Sentencing Hearing,
2/22/19, at 1-55. See also Commonwealth v. Banks, 198 A.3d 391, 400
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7 At the beginning of the sentencing hearing, Attorney Rainey acknowledged
Judge Coyle’s sentencing authority when she failed to object, and instead,
stated, “Your Honor, good afternoon, Debra Rainey, Defender Association for
Mr. Faixmel.” N.T. Sentencing Hearing, 2/22/19, at 5; see also Banks, infra.
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(Pa. Super. 2018) (defendant waived all challenges to authority of sentencing
judge where, at time of hearing, defendant lodged no objection, responding
simply: “Yeah, we can proceed. That’s fine.” and defendant’s counsel waited
until after sentence was imposed to object); Commonwealth v. Rhoads,
323 A.2d 249, 250 (Pa. Super. 1974) (“Where . . . there is no objection to the
substitution of judges at sentencing, the issue is deemed to be waived for
purposes of appellate review.”).8 Therefore, this issue, too, is not preserved
for our review.
Judgment of sentence affirmed.
Judge Strassburger did not participate in the consideration or decision
of this Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/21
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8 We note that Attorney Rainey was able to lodge other timely objections at
the sentencing hearing without issue. See N.T. Sentencing Hearing, 2/22/19,
at 48 (“Judge, I’m going to object to th[e c]ourt’s constant continuous
referral to [Faixmel’s] juvenile history.”) (emphasis added); id. at 50 (“Note
my objection for the record.”) (emphasis added).
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