J-S79042-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee

v.

JEFFREY MCELWEE,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2148 EDA 2014

Appeal from the Judgment of Sentence Entered June 16, 2014, 

in the Court of Common Pleas of Delaware County, 

Criminal Division, at No(s): CP-23-CR-0002441-2014

BEFORE: ALLEN, OLSON, and STRASSBURGER, JJ.*

MEMORANDUM BY: STRASSBURGER, J.: FILED JANUARY 13, 2015

Jeffrey McElwee (Appellant) appeals from the judgment of sentence 

imposed following his negotiated plea of guilty to one count of receiving 

stolen property.1 In addition, Appellant’s counsel has filed a petition to 

withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the 

judgment of sentence and grant the petition to withdraw.

On April 8, 2014, Appellant was arrested and charged with receiving 

stolen property because he was in possession of a vehicle that had been 

reported stolen.2 Appellant told the police officer that the vehicle was not 

 

1 18 Pa.C.S. § 3925(a).

2 Specifically, the vehicle had been reported stolen from Covington, Virginia 

where a warrant had been issued for Appellant’s arrest on a charge of 

unauthorized use of a vehicle. 
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stolen, and he had paid $2,000 for it. Affidavit of Probable Cause, 4/9/2014. 

On June 16, 2014, Appellant entered into a negotiated guilty plea to the 

aforementioned charge in exchange for a sentence of time served to 23 

months’ incarceration followed by three years of probation. The trial court 

sentenced Appellant accordingly. 

Appellant timely filed a notice of appeal. In response to the trial 

court’s directive to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925, Appellant’s counsel filed a statement of intent to 

file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

The following principles guide our review of this matter.

Direct appeal counsel seeking to withdraw under Anders must 

file a petition averring that, after a conscientious examination of 

the record, counsel finds the appeal to be wholly frivolous. 

Counsel must also file an Anders brief setting forth issues that 

might arguably support the appeal along with any other issues 

necessary for the effective appellate presentation thereof....

Anders counsel must also provide a copy of the Anders 

petition and brief to the appellant, advising the appellant of the 

right to retain new counsel, proceed pro se or raise any 

additional points worthy of this Court's attention.

If counsel does not fulfill the aforesaid technical 

requirements of Anders, this Court will deny the petition to 

withdraw and remand the case with appropriate instructions 

(e.g., directing counsel either to comply with Anders or file an 

advocate's brief on Appellant’s behalf). By contrast, if counsel’s 

petition and brief satisfy Anders, we will then undertake our 

own review of the appeal to determine if it is wholly frivolous. If 

the appeal is frivolous, we will grant the withdrawal petition and 

affirm the judgment of sentence. However, if there are non-
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frivolous issues, we will deny the petition and remand for the 

filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007) 

(citations omitted).

Our Supreme Court has clarified the requirements of the Anders brief:

Accordingly, we hold that in the Anders brief that accompanies 

court-appointed 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.

Santiago, 978 A.2d at 361.

We find that counsel has complied substantially with the requirements 

of Anders and Santiago.

3 We, therefore, will undertake a review of the 

appeal to determine if it is wholly frivolous.

We begin by noting that “generally, a plea of guilty amounts to a 

waiver of all defects and defenses except those concerning the jurisdiction of 

the court, the legality of the sentence, and the validity of the guilty plea.” 

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991) 

(citation omitted).

 

3 Appellant has filed a pro se response to the counsel’s Anders brief. 
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In his Anders brief, counsel presents the following issues that might 

arguably support an appeal: “Whether [the trial court] should have explored 

the statement attributed to [Appellant] in the Affidavit of Probable Cause 

attached to the Criminal Complaint that he did not steal the truck in question 

and that he had paid $2,000 for it?” Anders Brief at 1.

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. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to 

employ either measure results in waiver. Commonwealth v. 

Tareila, 895 A.2d 1266, 1270 n. 3 (Pa. Super. 2006). 

Historically, Pennsylvania courts adhere to this waiver principle 

because “[i]t is for the court which accepted the plea to consider 

and correct, in the first instance, any error which may have been 

committed.” Commonwealth v. Roberts, 237 Pa. Super. 336, 

352 A.2d 140, 141 (1975) (holding that common and previously 

condoned mistake of attacking guilty plea on direct appeal 

without first filing petition to withdraw plea with trial court is 

procedural error resulting in waiver; stating, “(t)he swift and 

orderly administration of criminal justice requires that lower 

courts be given the opportunity to rectify their errors before they 

are considered on appeal”; “Strict adherence to this procedure 

could, indeed, preclude an otherwise costly, time consuming, 

and unnecessary appeal to this court”).

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013).

Instantly, Appellant has waived review of the validity of his guilty plea

because he failed to preserve it properly by objecting during the plea 

colloquy or by filing a post-sentence motion to withdraw his plea. Thus, we 

conclude that this issue is frivolous.
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Moreover, even if Appellant had preserved this issue, it would still be 

frivolous. “[A]fter the court has imposed a sentence, a defendant can 

withdraw his guilty plea ‘only where necessary to correct a manifest 

injustice.’” Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 

2014) (quoting Commonwealth v. Starr, 301 A.2d 592, 595 (Pa. 1973)).

To be valid, a guilty plea must be knowingly, voluntarily and 

intelligently entered. [A] manifest injustice occurs when a plea is 

not tendered knowingly, intelligently, voluntarily, and 

understandingly. The Pennsylvania Rules of Criminal Procedure 

mandate pleas be taken in open court and require the court to 

conduct an on-the-record colloquy to ascertain whether a 

defendant is aware of his rights and the consequences of his 

plea. Under [Pa.R.Crim.P.] 590, the court should confirm, inter 

alia, that a defendant understands: (1) the nature of the charges 

to which he is pleading guilty; (2) the factual basis for the plea; 

(3) he is giving up his right to trial by jury; (4) and the 

presumption of innocence; (5) he is aware of the permissible 

ranges of sentences and fines possible; and (6) the court is not 

bound by the terms of the agreement unless the court accepts 

the plea. The reviewing Court will evaluate the adequacy of the 

plea colloquy and the voluntariness of the resulting plea by 

examining the totality of the circumstances surrounding the 

entry of that plea. Pennsylvania law presumes a defendant who 

entered a guilty plea was aware of what he was doing, and the 

defendant bears the burden of proving otherwise.

Prendes, 97 A.3d at 352-53.

A review of the record reveals that the trial court inquired into the 

appropriate areas. N.T., 6/16/2014, at 5-10. Moreover, Appellant and his 

attorney signed a lengthy guilty plea statement and statement of postsentence rights. Notably, the trial court questioned Appellant as follows.
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The Court: In this case, the Commonwealth would have to 

prove at trial that on the date charged you unlawfully retained or 

disposed of the moveable property of another either believing 

that it was stolen or -- either knowing it was stolen or believing 

that it was probably stolen. Do you understand that?

[Appellant]: Yes, sir.

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The Court: Do you understand by entering the plea, 

you’re admitting your guilt?

[Appellant]: Yes, sir.

N.T., 6/16/2014, at 7-8.

As the plea and sentencing came to a close, Appellant raised the issue 

that the vehicle involved was a truck he “put in [his] girlfriend’s name.” Id. 

at 16. However, he wanted to know when he would be extradited to Virginia 

to face the other charge in connection with this incident. In his pro se

response to counsel’s Anders Brief, Appellant claims once again that he 

“bought [the truck and] put it in [his girlfriend’s] name[.]” Pro Se Brief at 1. 

He also claims that he “was advised by [his] lawyer to plead guilty” and now 

wishes to appeal on the basis that “the truck wasn’t stolen.” Id. at 2. 

However, “[a] defendant is bound by the statements he makes during his 

plea colloquy, and may not assert grounds for withdrawing the plea that 

contradict statements made when he pled.” Commonwealth v. Stork, 737 

A.2d 789, 790–91 (Pa. Super. 1999). Because Appellant admitted at his 
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guilty plea hearing that he stole the truck, an argument on appeal that the 

truck was not stolen is wholly frivolous.

Thus, after a review of the record, we agree with counsel that this 

appeal is wholly frivolous. For these reasons, we affirm the judgment of 

sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/13/2015