J-A09003-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

CURTIS MICHAEL RAMEY, SR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 261 WDA 2019

Appeal from the Order Entered January 22, 2019

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0006078-2018

BEFORE: SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.: FILED JULY 21, 2020

The Commonwealth appeals an order of the Allegheny County Common 

Pleas Court dismissing all charges against Curtis Michael Ramey, Sr., Appellee. 

We reverse and remand.

1

The trial court explained the procedural history as follows:

On January 22, 2019, [Appellee] appeared before Judge 

McDaniel to enter a general guilty plea to the charges filed against 

him. [Appellee] intended to plead guilty to violating 18 Pa.C.S.A. 

§ 6105(a)(1) (person not to possess a firearm), 18 Pa.C.S.A. 

§ 2701(a)(1) and (a)(3) (simple assault)[,] and 18 Pa.C.S.A. 

§ 2705 (recklessly endangering another person). During the 

guilty plea colloquy, while explaining the maximum penalties 

facing him, [Judge McDaniel] advised [Appellee]:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The order appealed was entered by the Honorable Donna Jo McDaniel. 

Merely days later, this case was assigned to the Honorable Anthony M. Mariani

after Judge McDaniel retired.
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Do you understand you have been previously 

convicted of a felony under the drug act and, 

therefore, you are a person not to possess a firearm 

although you had a firearm within your control...[?]

[* * *]

[Appellee]: Yes, Your Honor.

[N.T., 1/22/19, at 2–3.]

[* * *]

[Pursuant to Judge McDaniel’s direction, t]he Commonwealth then 

advised the [plea c]ourt:

If this case were to proceed to trial the state would 

call Officer Benjamin Bernhard, B -E -R -N -H -A -R -

D- and Officer Aaron Gardocki, G -A -R -D -O -C -K -

I, James Bailey[,] and Michelle Lawson[,] who would 

collectively testify that on April 18, 2018[,] officers 

were dispatched to [Appellee’s] home where he had 

pointed a shotgun at a guest at approximately 12:45 

a.m. [Appellee], James Bailey [(“the victim”)] and 

Michelle Lawson were socializing when—

[N.T., 1/22/19, at 4.]

Judge McDaniel interrupted and asked [the] Commonwealth’s 

counsel to slow down. The assistant district attorney then 

continued:

When the parties were socializing the conversation 

turned to a dis-favorable topic. At that point 

[Appellee] went upstairs, grabbed a shotgun and went 

downstairs and pointed it at the victim. He then 

proceeded to kick [the victim] out of his house by 

pushing him down concrete stairs. The state would 

rest.

Judge McDaniel asked defense counsel if she had any additions or 

corrections to which defense counsel responded that she did not. 

Judge McDaniel then asked if there was a plea agreement reached 

between the parties. When defense counsel responded by 
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advising Judge McDaniel that a plea agreement could not be 

reached but she wished to present mitigating information on 

behalf of [Appellee], Judge McDaniel stated[:]

Well, unfortunately, the Commonwealth did not put in 

its summation the fact that [Appellee] has a prior 

conviction for felony drugs, therefore, it has not met 

the requirement of a person not to possess and I will 

dismiss the charges.

[N.T., 1/22/19, at 5.]

In her formal written order, Judge McDaniel wrote[:]

This Honorable Court hereby dismisses case (sic) due 

to insufficient evidence presented during [the] 

Commonwealth’s summary of the facts.

The Commonwealth filed an appeal[,] and on appeal it alleges that 

Judge McDaniel erred by dismissing all charges against [Appellee]. 

Based on the record, this [c]ourt is constrained to agree[,] and it 

believes Judge McDaniel’s order should be reversed and 

the case remanded to this [c]ourt for further proceedings.

Pa.R.A.P. 1925(a) Opinion, 6/25/19, at 1–3 (emphasis added).

Judge McDaniel retired a few days after she dismissed these charges, 

and this case was transferred to Judge Mariani, who issued a Pa.R.A.P. 1925 

order. Both the Commonwealth and Judge Mariani complied with Rule 1925.

The Commonwealth asserts the following issue on appeal: “Whether 

the [plea] court erred in refusing to accept the guilty plea to charges of 

[violations of the Uniform Firearms Act] VUFA, [s]imple assault and 

[r]ecklessly endangering another person and then ordering those charges to 

be dismissed?” Commonwealth’s Brief at 5.
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The Commonwealth argues that it was disingenuous of Judge McDaniel 

to state that the Commonwealth had not established that Appellee had a prior 

felony drug conviction, in that Judge McDaniel “stated that very fact on the 

record at the beginning of the proceeding.” Commonwealth’s Brief at 14–15. 

Referencing Pa.R.Crim.P. 590, “Pleas and Plea Agreements,” the 

Commonwealth acknowledges that while a trial court must determine whether 

there is a factual basis for the plea, “that requirement does not demand a 

rigidity that borders on the ridiculous.” Id. at 15. The Commonwealth asserts 

that without prompting from anyone, the plea court “informed [A]ppellee that 

he had a prior drug conviction which made him ineligible to possess a firearm.” 

Id. The Commonwealth maintains that while the prosecutor “did not repeat 

that fact in her summation, it was a fact that no one disputed.” Id.

Appellee responds that the Commonwealth failed to prove every 

element of the charged crimes, ignoring and discounting that Judge McDaniel 

“took notice” of Appellee’s prior felony drug offense; Appellee suggests it was 

not the judge’s “duty.” Appellee’s Brief at 13. Appellee contends:

The Commonwealth failed to put in its factual summation that 

[Appellee] had a prior felony drug conviction. Without mention of 

this material element of the crime of Persons Not to Possess a 

Firearm by the Commonwealth to [Appellee], . . . Judge McDaniel 

was correct in her determination that [Appellee’s] plea would not 

have been voluntary and understandingly tendered, because the 

Commonwealth failed to present to him the fact that they would 

be presenting his prior conviction as evidence against him in 

support of his Persons Not to Possess Charge. [Pa.R.Crim.P.] 591 

permit[s] judges to withdraw a guilty plea sua sponte, and 

allow[s] the substitution of a plea of not guilty. . . . The 

substitution of a plea of not guilty by the fact-finder is unnecessary 
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in the case at hand when the Commonwealth failed to assert a 

material element of a crime they are prosecuting.

Appellee’s Brief at 15.

We agree with Judge Mariani that there was no legal justification for 

Judge McDaniel’s dismissal of all of the charges. As Judge Mariani noted, the 

fact that Appellee previously had been convicted of a felony drug offense “was 

of no consequence to the elements of the two simple assault offenses and the 

charge of recklessly endangering another person.” Pa.R.A.P. 1925 Opinion, 

6/25/19, at 3–4. With respect to the VUFA charge, Judge McDaniel, herself,

specifically informed Appellee that he had been previously convicted of the 

predicate felony for that offense, and Appellee did not object to that 

statement. Id. at 4. As Judge Mariani maintained, the remaining factual 

allegation that Appellee brandished a shotgun was sufficient to establish that 

Appellee was a person not to possess a firearm. As Judge Mariani opined:

[T]his [c]ourt could find no legal authority that authorizes a trial 

court to dismiss a charge when a trial court believes the 

Commonwealth fails to establish a factual basis for a guilty plea. 

In this [c]ourt’s view, the proper protocol would have been to 

reject [Appellee’s] attempt to plead guilty and set the case for 

trial. Rule 590 of the Pennsylvania Rules of Criminal Procedure 

govern[s] guilty pleas[,] and nowhere in that rule does it empower 

a trial court to dismiss criminal charges rather than reject the 

guilty plea. Accordingly, this [c]ourt believes Judge McDaniel 

should have simply rejected [Appellee’s] efforts to plead guilty if 

she believed there was an insufficient basis to establish the 

elements of the offenses charged in this case.

Id. at 5 (emphasis added).
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We agree. If the fact of the prior conviction “needed to be restated,” 

Commonwealth Brief at 15, Judge McDaniel should have asked the prosecutor 

to supply all of the relevant facts concerning it, or alternatively, refused to 

accept the plea and ordered the parties to go to trial. Absent an abuse of 

discretion, we will not disturb a trial court’s decision sua sponte to withdraw a 

guilty plea. Commonwealth v. Rosario, 679 A.2d 756, 760 (Pa. 1996). “An 

abuse of discretion is not merely an error of judgment, but if in reaching a 

conclusion the law is overridden or misapplied or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, 

as shown by . . . the record, discretion is abused.” Commonwealth v. 

Herbert, 85 A.3d 558, 561 (Pa. Super. 2014). Moreover, Pa.R.Crim.P. 591 

provides, in pertinent part, “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.” Pa.R.Crim.P. 591(a) (emphasis 

added). Our standard of review of Judge McDaniel’s disregard of the dictate 

of Rule 591 requiring “substitution of a plea of not guilty” and thereby 

committing an error of law, is de novo, and the scope of review is plenary. 

Commonwealth v. Crawley, 924 A.2d 612 (Pa. 2007).

Pennsylvania Rule of Criminal Procedure 320 provides: “At any time 

before sentence, the court may, in its discretion, permit or direct a plea of 
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guilty to be withdrawn and a plea of not guilty substituted.” Our Supreme 

Court explained Rule 320 in Rosario, when it stated:

[A]bsent an abuse of discretion, a trial judge can order the 

withdrawal of a guilty plea any time prior to sentencing. The use 

of the disjunctive “or” clearly identifies two situations when the 

trial judge can withdraw a guilty plea: when requested by the 

defendant or sua sponte without the defendant’s request.

Id. at 759 (emphasis added). As a result, it is clear that the trial court had 

the authority, absent an abuse of discretion, to sua sponte reject the guilty 

plea prior to imposing sentence.

Abuse of discretion and error of law are clear in this case. Judge 

McDaniel, without prompting, informed Appellee that his prior drug conviction

made him ineligible to possess a firearm. Appellee did not challenge this 

statement. While the prosecutor did not repeat that fact in her summation, 

as noted supra, no one disputed it. Moreover, as argued by the 

Commonwealth, the totality of the circumstances did not demand that the fact

be repeated. Commonwealth’s Brief at 15. This Court has stated:

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. This 

determination is to be made by examining the totality of the 

circumstances surrounding the entry of the plea. Thus, 

even though 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.
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Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)

(quoting Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993)

(emphasis added)). If Judge McDaniel required restatement of Appellee’s 

prior felony drug conviction, which she already had underscored and advised, 

the judge should have asked the prosecutor to supply all relevant facts or 

refused to accept the plea and ordered the parties, in accordance with our 

criminal rules of procedure, to go to trial. Dismissing the VUFA charge, as 

well as the other charges that had no required element involving a prior 

conviction, was an abuse of discretion.2

____________________________________________

2

 Contrary to Appellee’s claim, double jeopardy is not implicated herein. In a 

single paragraph, Appellee suggests that when Judge McDaniel dismissed all 

charges, “jeopardy should have attached.” Appellee’s Brief at 16. Appellee 

cites Rosario, 679 A.2d at 757, for the proposition that “a plea of guilty 

accepted by the court has the same effect as a verdict of guilty.” Appellee’s 

Brief at 16 (emphasis added). In the case sub judice, Appellee ignores the 

fact that the plea was not accepted.

In actuality, Rosario supports the conclusion that double jeopardy is 

not implicated in this case. The Rosario Court held, for purposes of the 

statute barring re-prosecution for the same offense, when the former 

prosecution resulted in a conviction based on a guilty plea “accepted by the 

court,” jeopardy attaches after sentencing. Id. at 759. Appellee’s counsel 

acknowledges that his plea was not accepted by Judge McDaniel but claims 

“the matter was dismissed at the last possible point in time. [Appellee] came 

into the guilty plea proceeding with every intention of pleading guilty, which 

would constitute the same effect as a verdict of guilty” according to Rosario. 

Appellee’s Brief at 16. Appellee admits, albeit without citation, that this Court 

has held that being at a hearing at which the defendant intended to enter a 

guilty plea does not subject the defendant to the risk of being 

convicted. Id. He suggests, however, again without any support, that it did 

so subject him because “the intention when arriving to a guilty plea proceeding 

is for defendants to subject themselves to the risk of conviction.” Id. We 

reject this claim as it lacks legal support and sensible logic.
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Order reversed; case remanded for reinstatement of charges. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2020