J-S09032-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT REESE 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1406 EDA 2019

Appeal from the Judgment of Sentence Entered April 2, 2019

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

No(s): CP-51-CR-0007746-2018

BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: April 1, 2020

Appellant, Robert Reese, appeals from the judgment of sentence of two 

to four years of confinement followed by two years of probation, which was 

imposed after he pleaded guilty to aggravated assault and possessing 

instruments of crime (“PIC”).

1

 With this appeal, appellate counsel has filed a 

petition to withdraw and an Anders2 brief, stating that the appeal is wholly 

frivolous. After careful review, we affirm and grant counsel’s petition to 

withdraw.

The facts underlying this appeal are as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702(a) and 907(a), respectively. The aggravated assault 

charge was graded as a felony of the second degree.

2 Anders v. California, 386 U.S. 738 (1967).
J-S09032-20

- 2 -

On October 11th, 2018, at approximately 1:25 in the afternoon, 

the complainants Jacqueline Soder and Andrea Elmaghraby, were 

sitting on the steps outside of [a] home on the 2300 block of East 

Clearfield Street in the City and County of Philadelphia.

While sitting on that front step, [Appellant] drove onto that block 

in a blue van. [Appellant] then drove his vehicle off of the street 

up onto the sidewalk and into [Elmaghraby’s] leg.

He the[n] put the car in reverse and attempted to go towards the 

other complainant, Ms. Soder. Ms. Soder was not struck by the 

van, however this incident was observed by 24th Police District 

Officers Cristina Quintez and Sergeant Armstrong.

Upon seeing this incident, Officer Quintez and Sergeant Armstrong 

did follow [Appellant] who fled, and were able to . . . stop him at 

the intersection of Memphis [Street] and Allegheny Avenue in the 

City and County of Philadelphia.

[Elmaghraby] did spend several days from the 11th to the 15th at 

Temple Hospital where she did receive surgery for [a] broken tibia

and a rod was inserted into her leg.

Ms. Soder did not have injury as a result of this incident.

N.T., 4/2/2019, at 38-40.

On April 2, 2019, after six jurors had already been selected, Appellant 

informed the trial court that he was not satisfied with his attorney but was 

unwilling to accept the trial court’s offer of new counsel. Id. at 12. Following 

a lunch recess, Appellant requested that he have an opportunity “to see” the 

complainants, who were in the back of the courtroom. Id. at 23. Immediately 

thereafter, Appellant agreed to a negotiated guilty plea. Id. at 24-25.

During the oral plea colloquy, the following exchanges occurred between 

Appellant and the trial court:

THE COURT: Have you ever been treated or are you currently 

being treated for any type of mental illness?
J-S09032-20

- 3 -

[APPELLANT]: No.

THE COURT: Sir, are you under the influence of any drugs, 

alcohol, or medication today?

[APPELLANT]: I take heart medicine. . . . 

[THE COURT:] Do any of those medications impact your ability 

to understand what’s going on here today?

[APPELLANT]: No.

THE COURT: Do any of those medications impact or interfere 

with your ability to communicate and understand your attorney?

[APPELLANT]: No.

Id. at 25-27.

The trial court then confirmed that Appellant understood the nature of 

the charges to which he was pleading, the factual basis for the plea, the 

permissible range of sentences and fines, and that he would have had a right 

to trial by jury had he proceeded to trial. Id. at 29-30, 38-40. Appellant also 

executed a written guilty plea colloquy, the cover sheet of which reiterated 

the content of the oral guilty plea colloquy and added that Appellant 

understood “that the judge is not bound by the terms of any plea agreement 

between [him]self, [his] attorney, and the attorney for the Commonwealth 

unless the judge accepts such agreement” and that he is “presumed innocent 

until [he is] proven guilty.” Colloquy for Plea of Guilty / Nolo Contendere, 

4/2/2019. The written guilty plea colloquy further explained the presumption 

of innocence as follows: “That means that I start out innocent—and stay 

innocent unless the District Attorney proves I committed the crime(s). I do 

not have to prove anything.” Written Guilty Plea Colloquy, 4/2/2019, at 1. 
J-S09032-20

- 4 -

Following the guilty plea colloquy, the trial court imposed the negotiated 

sentence of two to four years of incarceration for aggravated assault and a 

consecutive two-year probation for PIC. N.T., 4/2/2019, at 50-51.

On April 12, 2019, Appellant filed a timely post-sentence motion to 

withdraw his guilty plea, which the trial court denied on April 24, 2019. On 

May 9, 2019, Appellant filed this timely direct appeal.3

On October 16, 2019, appellate counsel filed an Anders brief presenting 

the question of whether any of the following issues have arguable merit: 

(1) whether the trial court erred in its denial of Appellant’s post-sentence 

motion, because (a) Appellant’s plea was invalid and/or (b) Appellant was not 

competent to enter a plea; and (2) whether the trial court imposed a legal 

sentence. See Anders Brief at 6, 11-13, 15.

On October 16, 2019, appellate counsel sent a letter to Appellant, 

informing Appellant that he intended to file a petition for leave to withdraw, 

and he filed his petition to withdraw that same day. Appellant has not filed a 

pro se response to that petition.

“[W]hen 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. Blauser, 166 A.3d 428, 431 (Pa. Super. 

2017). An Anders brief shall comply with the requirements set forth by the 

____________________________________________

3 Appellant filed his statement of errors complained of on appeal on July 8, 

2019. The trial court did not file an opinion.
J-S09032-20

- 5 -

Supreme Court of Pennsylvania in Commonwealth v. Santiago, 978 A.2d 

349, 361 (Pa. 2009):

[W]e hold that in the Anders brief that accompanies courtappointed counsel’s petition to withdraw, counsel must: 

(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.

Counsel seeking to withdraw on direct appeal must also meet the following 

obligations to his or her client:

Counsel . . . must provide a copy of the Anders brief to his client. 

Attending the brief must be a letter that advises the client of his 

right to: (1) retain new counsel to pursue the appeal; (2) proceed 

pro se on appeal; or (3) raise any points that the appellant deems 

worthy of the court’s attention in addition to the points raised by 

counsel in the Anders brief.

Commonwealth v. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017) 

(citations and internal brackets and quotation marks omitted). “Once counsel 

has satisfied the above requirements, it is then this Court’s duty to conduct 

its own review of the trial court’s proceedings and render an independent 

judgment as to whether the appeal is, in fact, wholly frivolous.” 

Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en 

banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 

2004)). Finally, “[w]e must also ‘conduct an independent review of the record 

to discern if there are any additional, non-frivolous issues overlooked by 
J-S09032-20

- 6 -

counsel.’” In re J.D.H., 171 A.3d 903, 908 (Pa. Super. 2017) (quoting 

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015) 

(footnote omitted)).

In this appeal, we observe that appellate counsel’s October 16, 2019, 

correspondence to Appellant provided a copy of the Anders brief to Appellant 

and advised Appellant of his right either to retain new counsel or to proceed 

pro se on appeal to raise any points he deems worthy of the court’s attention. 

Further, appellate counsel’s Anders brief, at 7-9, complies with prevailing law 

in that counsel has provided a procedural and factual summary of the case 

with references to the record. Appellate counsel additionally advances 

relevant portions of the record that arguably support Appellant’s claims that 

his plea was invalid and that he was not competent to enter a plea. Id. at 

13-14. However, appellate counsel believes that there is nothing in the record 

that arguably supports a challenge to the legality of Appellant’s sentence. Id.

at 15. Ultimately, appellate counsel cites his reasons and conclusion that “a 

direct appeal is frivolous, because there are no meritorious issues that could 

be raised.” Id. at 16. Counsel’s Anders brief and procedures hence comply 

with the requirements of Santiago and Schmidt. We therefore proceed to 

conduct an independent review to ascertain whether the appeal is indeed 

wholly frivolous.

Appellant first challenges the trial court’s denial of his post-sentence 

motion to withdraw his guilty plea. Id. at 11. 
J-S09032-20

- 7 -

We begin by setting forth our standard of review. In 

Commonwealth v. Broaden, 980 A.3d 124 (Pa.Super. 2009), 

we summarized the principles governing post-sentence motions 

to withdraw pleas:

[P]ost-sentence motions for withdrawal are subject to 

higher scrutiny since courts strive to discourage entry of 

guilty pleas as sentence-testing devices. A defendant must 

demonstrate that manifest injustice would result if the court 

were to deny his post-sentence motion to withdraw a guilty 

plea. Manifest injustice may be established if the plea was 

not tendered knowingly, intelligently, and voluntarily. In 

determining whether a plea is valid, the court must examine 

the totality of circumstances surrounding the plea. A 

deficient plea does not per se establish prejudice on the 

order of manifest injustice.

Id. at 129 (citations omitted). “It is well-settled that the decision 

whether to permit a defendant to withdraw a guilty plea is within 

the sound discretion of the trial court.” Commonwealth v. Hart, 

174 A.3d 660, 664 (Pa.Super. 2017) (applying abuse of discretion 

in post-sentencing context). The term discretion

imports the exercise of judgment, wisdom and skill so as to 

reach a dispassionate conclusion, and discretionary power 

can only exist within the framework of the law, and is not 

exercised for the purpose of giving effect to the will of the 

judges. Discretion must be exercised on the foundation of 

reason, as opposed to prejudice, personal motivations, 

caprice or arbitrary action. Discretion is abused when the 

course pursued represents not merely an error of judgment, 

but where the judgment is manifestly unreasonable or 

where the law is not applied or where the record shows that 

the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Shaffer, 551 Pa. 622, 712 A.2d 749, 751 

(1998) (citation omitted).

Commonwealth v. Kehr, 180 A.3d 754, 756-57 (Pa. Super. 2018).

Appellant specifically argues that his plea was invalid. Anders Brief at 

12.
J-S09032-20

- 8 -

“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 plea 

colloquy.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 

2011); accord Commonwealth v. Wilcox, 174 A.3d 670, 674 (Pa. Super. 

2017), appeal denied, 184 A.3d 545 (Pa. 2018).

Pa.R.Crim.P. 590, which pertains to procedures for entering pleas 

and plea agreements, requires pleas to be entered in open court, 

and specifies that the trial judge must make inquiries, on the 

record, to determine whether the plea is voluntarily and 

understandingly tendered. The comments to Pa.R.Crim.P. 590 

provide that at a minimum, the court should make the following 

inquiries:

(1) Does the defendant understand the nature of the 

charges to which he or she is pleading guilty or nolo 

contendere?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he or she has the 

right to trial by jury?

(4) Does the defendant understand that he or she is 

presumed innocent until found guilty?

(5) Is the defendant aware of the permissible range of 

sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by 

the terms of any plea agreement tendered unless the judge 

accepts such agreement?

Pa.R.Crim.P. 590, Comment.

Commonwealth v. McGarry, 172 A.3d 60, 66-67 (Pa. Super. 2017) 

(footnote omitted), appeal denied, 185 A.3d 966 (Pa. 2018).
J-S09032-20

- 9 -

Appellant concedes that the trial court inquired into his understanding 

of the first, second, third, and fifth factors from the Comment to Pa.R.Crim.P. 

590. Anders Brief at 12-13 (citing N.T., 4/2/2019, at 29-30, 38-40). 

However, he contends that the trial court did not inquire into his awareness 

of the fourth and sixth factors. Id. at 13. While Appellant is correct that, 

during his oral guilty plea colloquy, the trial court did not discuss the 

presumption of innocence and the trial court’s power to reject the terms of a 

plea agreement, Appellant affirmed that he understood these matters in his 

written guilty plea colloquy. Colloquy for Plea of Guilty / Nolo Contendere, 

4/2/2019; Written Guilty Plea Colloquy, 4/2/2019, at 1; see also Comment 

to Pa.R.Crim.P. 590 (“nothing in the rule would preclude the use of a written 

colloquy that is read, completed, signed by the defendant, and made part of 

the record of the plea proceedings”). Accordingly, Appellant’s argument that 

his plea was invalid due to the trial court’s failure to investigate his 

understanding of these two factors is belied by the record, and he thereby 

cannot demonstrate the manifest injustice required for this Court to find that 

the trial court abused its discretion by denying his post-sentence motion to 

withdraw his guilty plea. Kehr, 180 A.3d at 756-57.

Appellant additionally urges this Court to find that the trial court erred 

by denying his post-sentence motion to withdraw his plea on the basis that he 

was not competent to enter into a plea due to the medications that he was 

taking at the time. Anders Brief at 13-14. However, Appellant communicated 
J-S09032-20

- 10 -

to the trial court that he was only taking heart medication that did not impact 

his comprehension or communication. N.T., 4/2/2019, at 26-27. He also 

stated that he has never been treated for mental illness. Id. at 25. Appellant 

is bound by these statements that he made in open court while under oath. 

Yeomans, 24 A.3d at 1047; see also Wilcox, 174 A.3d at 674. 

Consequently, Appellant cannot establish that his plea was not tendered 

knowingly, intelligently, and voluntarily due to his lack of competency. See 

Kehr, 180 A.3d at 756-57.

Finally, Appellant maintains that his sentence was illegal. Anders Brief 

at 15.

“When reviewing the legality of a sentence, our standard of review is de 

novo and our scope of review is plenary.” Commonwealth v. Lekka, 210 

A.3d 343, 355 (Pa. Super. 2019) (citation omitted).

In the current action, Appellant pleaded guilty to aggravated assault, 

graded as a felony of the second degree, and to PIC. These counts bear a 

maximum penalty of ten years of incarceration and of five years of 

incarceration, respectively, for an aggregate maximum potential penalty of 15 

years of incarceration. Instead, Appellant’s aggregate sentence was two to 

four years of confinement for aggravated assault followed by two years of 

probation for PIC; as this sentence was well under the statutory maximums, 
J-S09032-20

- 11 -

it was legal. See Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 

2003) (“An illegal sentence is one that exceeds the statutory limits.”).4

Based on the foregoing, we agree with appellate counsel that the issues 

raised by Appellant lack merit. See Goodwin, 928 A.2d at 291. In addition, 

we have reviewed the certified record consistent with J.D.H., 171 A.3d at 908, 

and Flowers, 113 A.3d at 1250, and have discovered no additional arguably 

meritorious issues. Therefore, we grant appellate counsel’s petition to 

withdraw and affirm the trial court’s judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/1/20

____________________________________________

4 Furthermore, the charges of aggravated assault and PIC do not merge for 

sentencing purposes. Commonwealth v. Meekins, 644 A.2d 765, 766 (Pa. 

Super. 1994).