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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

MATTHEW EARLY

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2159 EDA 2019

Appeal from the Judgment of Sentence Entered October 25, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000769-2013

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

MATTHEW EARLY

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2160 EDA 2019

Appeal from the Judgment of Sentence Entered October 25, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000771-2013

BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.: Filed: August 13, 2020

Appellant, Matthew Early, appeals from the judgments of sentence 

entered in the Philadelphia County Court of Common Pleas, following his guilty 

pleas to attempted murder, possession of an instrument of crime (“PIC”), 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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firearms not to be carried without a license, and carrying firearms in public in 

Philadelphia.1 We affirm.

The relevant facts and procedural history of this case are as follows. On 

December 12, 2012, Appellant and his brother had a verbal altercation with 

Tremaine Fortune on a train. When Appellant and his brother exited the train 

at a station stop, Appellant turned back toward the train and fired a gun 

through the open train door at Mr. Fortune. A bullet struck the abdomen of

Mr. Fortune, who was still on the train. The bullet passed through Mr. Fortune

and struck the leg of Avery Moore, who was behind Mr. Fortune. During the 

investigation into the incident, police recovered video surveillance footage of 

the shooting. Additionally, Detective Orlando Ortiz interviewed the victims

and had them identify suspects in photo arrays, which included pictures of 

both Appellant and his brother. 

The Commonwealth charged Appellant with, inter alia, attempted 

murder, PIC, and firearms offenses at two docket numbers. Specifically, the 

Commonwealth charged Appellant at docket No. 769-2013 for the offenses 

concerning Mr. Fortune and at docket No. 771-2013 for the offenses related 

to Mr. Moore. While the criminal complaints charged Appellant as the shooter, 

the affidavits of probable cause stated that the victims had identified

Appellant’s brother as the shooter in the photo arrays. Detective Orlando Ortiz

____________________________________________

1 18 Pa.C.S.A. §§ 2502, 907(a), 6106(a)(1), and 6108, respectively. 
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was the affiant for both the affidavits of probable cause and the criminal 

complaints. 

Prior to Appellant’s preliminary hearing, Appellant filed a motion to

conduct a physical lineup. On January 17, 2013, the court held a hearing on 

Appellant’s motion and a preliminary hearing. While discussing Appellant’s 

lineup request, the Commonwealth stated: “As the suspect was developed one 

day later the detective went to the hospital and/or met up with [the victims] 

and showed them photo arrays separately and each [victim] identified 

[Appellant] through that photo array one day later.” (N.T. Preliminary 

Hearing, 1/17/13, at 4). In response, Appellant did not challenge the 

prosecutor’s statement or seek clarification as to whether the victims had

identified Appellant as a bystander or the shooter. Appellant also asked the 

court to prohibit the Commonwealth from playing the surveillance video to 

refresh the victims’ recollection. The court denied Appellant’s lineup motion. 

(See id. at 4-5).

At the preliminary hearing, Mr. Moore testified that during the verbal 

quarrel on the train he heard Appellant say, “I have a bullet for everyone on 

this train. I have a bullet for each and every one of you.” (Id. at 26). 

Additionally, both victims testified at the preliminary hearing that they saw 

Appellant fire the gun. The parties did not mark as exhibits or move into the 

record the photo arrays or the surveillance footage and did not call Detective 

Ortiz to testify. Throughout the hearing, Appellant did not question the victims 
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about their photo array identifications generally or as described in the 

affidavits of probable cause. Appellant also did not request the affidavits or 

state he had yet to receive them. Further, Appellant failed to argue that the 

evidence did not establish Appellant’s identity as the shooter. Rather, at the 

conclusion of the preliminary hearing, defense counsel stated, “I submit that 

although there is evidence of a shooting from my client, there isn’t sufficient 

evidence to infer that my client attempted to murder these individuals.” (Id.

at 6-41).

On September 11, 2013, Appellant entered guilty pleas at both docket 

numbers cumulatively to two counts each of attempted murder, PIC, firearms 

not to be carried without a license, and carrying firearms in public in 

Philadelphia. The court deferred sentencing and ordered a pre-sentence 

investigation (“PSI”) report and mental health evaluation. In May 2014, 

Appellant filed pro se a motion to withdraw his guilty plea at docket No. 769-

2013 (crimes related to Mr. Fortune).

On June 6, 2014, the court declared Appellant incompetent and entered 

an involuntary commitment order per the Mental Health Procedures Act, 50 

P.S. §§ 7101-7503. The court deemed Appellant competent on July 14, 2016, 

and appointed new counsel in December 2016. The court again declared

Appellant incompetent on June 1, 2017. Appellant filed at each docket number 

a motion to withdraw his guilty pleas and a motion to dismiss with prejudice 

for prosecutorial misconduct on January 21 and 26, 2018, respectively. The 
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court declared Appellant competent on January 29, 2018. 

On March 8, 2018, the court held a hearing on Appellant’s motions. 

Regarding his request to withdraw his guilty pleas, defense counsel argued 

the surveillance video showed Appellant was not the shooter. Counsel claimed 

the video depicts the shorter of the two individuals shooting into the train and

counsel alleged that Appellant is six feet tall. The court indicated it had 

reviewed the surveillance footage and explained it could not gauge the height 

of the individuals due the perspective of the video. Counsel noted the victims’ 

preliminary hearing identification testimony was at odds with the statement 

in the affidavits of probable cause that state the victims had identified

Appellant’s brother as the shooter on the photo arrays. In response, the 

Commonwealth explained the affidavits of probable cause inaccurately

described the victims’ photo array selections due to a typographical error. The 

Commonwealth submitted that Appellant possessed the completed photo 

arrays, on which both victims had circled Appellant’s picture and written

“shooter.” The Commonwealth added that it had lost contact with one victim

and three additional witnesses. 

Regarding his prosecutorial misconduct claim, Appellant alleged the 

Commonwealth: (1) withheld discovery and the affidavits of probable cause, 

which counsel allegedly discovered only recently; and (2) presented the 

victims’ identification testimony at the preliminary hearing knowing it

contradicted the affidavits of probable cause. Notwithstanding his claims, 
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Appellant did not request to reopen the evidentiary record, attempt to present 

the testimony of Detective Ortiz, or seek to mark as exhibits and move into 

the record the photo arrays and/or surveillance video. (N.T. Motion Hearing, 

3/8/18, at 3-15). The court denied Appellant’s motions at the conclusion of

the hearing, on March 8, 2018.

The court sentenced Appellant at both docket numbers on October 25, 

2018, to an overall aggregate term of thirteen and one-half (131⁄2) to twentyseven (27) years’ incarceration, plus ten (10) years’ probation. On November 

5, 2018, Appellant timely filed a post-sentence motion, which was denied by 

operation of law on March 5, 2019. Appellant timely filed notices of appeal at 

each docket number on April 3, 2019.2 The court ordered Appellant on August 

1, 2019, to file a concise statement of errors complained of on appeal per 

Pa.R.A.P. 1925(b); Appellant timely complied on August 22, 2019. 

Appellant raises two issues for our review:

Whether the trial court abused its discretion in denying 

Appellant’s motion[s] to withdraw [his] guilty plea[s], where 

the motion[s] w[ere] filed prior to sentencing and Appellant 

asserted fair and just reasons that he is innocent of 

attempted murder, carrying a firearm without a license, and 

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2 Appellant’s notices of appeal list only the respective docket number at which 

Appellant filed each notice, in compliance with Commonwealth v. Creese, 

216 A.3d 1142 (Pa.Super. 2019). In any event, this Court recently overruled 

Creese to the extent that it required the Superior Court to quash appeals 

when an appellant files multiple notices of appeal and each notice lists all of 

the underlying trial court docket numbers. See Commonwealth v. 

Johnson, ___ A.3d ___, 2020 PA Super 164 (filed July 9, 2020) (en banc). 

Thus, Appellant’s notices of appeal are properly before us. As Appellant filed 

nearly identical appellate briefs in these appeals, we consider them together.
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carrying a firearm on public streets, and [PIC], where he 

was not the person responsible for the shooting and not 

charged with conspiracy?

Whether the trial court abused its discretion in denying 

Appellant’s motion to dismiss with prejudice pursuant to 

[the] Double Jeopardy [Clause] of the Pennsylvania State 

Constitution, for prosecutorial misconduct, where the 

Commonwealth failed to disclose during [Appellant’s] lineup 

motion [hearing] that Appellant was identified by [the 

victims] as [a] mere bystander, not the shooter, who is 

Appellant’s brother, the Commonwealth permitted [the 

victims] to falsely identify Appellant as the shooter during 

the preliminary hearing, and the Commonwealth withheld 

[the victims’] exculpatory exoneration [of] Appellant by not 

providing discovery to Appellant’s attorney who by chance 

discovered [the victims’] prior statement[s] contained in 

Detective Orlando[ Ortiz’s] affidavit which was inadvertently 

made part of Appellant’s [PSI] report?

(Appellant’s Brief at 5). 

In his first issue, Appellant argues the Commonwealth failed to verify 

whether the statement in the affidavits of probable cause stating the victims 

had identified Appellant’s brother as the shooter on the photo arrays was 

actually due to a typographical error. Appellant also claims the surveillance

video footage is exculpatory. Appellant submits he established a colorable 

claim of innocence. Appellant asserts the Commonwealth’s loss of contact 

with witnesses does not show it would suffer prejudice if the court permitted 

Appellant to withdraw his pleas, because the surveillance video depicts the 

shooting. Appellant concludes this Court should vacate the judgments of 
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sentence and remand to permit Appellant to withdraw his guilty pleas.

3

 We 

disagree.

Review of the denial of a pre-sentence motion to withdraw a guilty plea 

implicates the following:

[W]e recognize that 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 or nolo contendere and the 

substitution of a plea of not guilty.” Pa.R.Crim.P 591(A). 

The Supreme Court of Pennsylvania recently clarified the 

standard of review for considering a trial court’s decision 

regarding a defendant’s pre-sentence motion to withdraw a 

guilty plea:

Trial courts have discretion in determining whether a 

withdrawal request will be granted; such discretion is 

to be administered liberally in favor of the accused; 

and any demonstration by a defendant of a fair-andjust reason will suffice to support a grant, unless 

withdrawal would work substantial prejudice to the 

Commonwealth. 

Commonwealth v. Carrasquillo, 631 Pa. 692, [704,] 115 

A.3d 1284, 1285, 1291-92 (2015) (holding there is no per 

se rule regarding pre-sentence request to withdraw a plea, 

and bare assertion of innocence is not a sufficient reason to 

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3 To the extent Appellant raises on appeal any issues related to his earlier 

2014 motion to withdraw his guilty plea at docket No. 769-2013, those claims 

are waived for failure to preserve them in his Rule 1925(b) statement. See 

Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2000)

(stating general rule that issues not raised in Rule 1925(b) concise statement 

will be deemed waived on appeal); Commonwealth v. Hill, 609 Pa. 410, 

427, 16 A.3d 484, 494 (2011) (stating: “Rule 1925(b) waivers may be raised 

by the appellate court sua sponte”); Commonwealth v. Reeves, 907 A.2d 

1, 2 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007)

(explaining that Rule 1925(b) statement must be “specific enough for the trial 

court to identify and address the issue [an appellant] wishe[s] to raise on 

appeal”). 
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require a court to grant such request). We will disturb a 

trial court’s decision on a request to withdraw a guilty plea

only if we conclude that the trial court abused its discretion. 

Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa.Super. 

2013)[, appeal denied, 624 Pa. 687, 87 A.3d 318 (2014)]. 

Commonwealth v. Davis, 191 A.3d 883, 888-89 (Pa.Super. 2018), appeal 

denied, ___ Pa. ___, 200 A.3d 2 (2019). 

[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.

Carrasquillo, supra at 705-06, 115 A.3d at 1292 (internal citation omitted). 

(indicating court should consider plausibility and sincerity of defendant’s 

assertion of innocence, as well as circumstances surrounding pre-sentence 

motion to withdraw plea, including motivation and timing of request; court 

properly denied withdrawal motion where evidentiary record was closed, 

defendant did not make request to reopen record to support motion to 

withdraw his guilty plea, and his assertion of innocence was outlandish). 

“[B]oth the timing and the nature of the innocence claim, along with the 

relationship of that claim to the strength of the government’s evidence, are 

relevant.” Commonwealth v. Islas, 156 A.3d 1185, 1190 (Pa.Super. 2017)

(noting defendant’s prior representation of innocence to police lent credence 

to his pre-sentence assertion of innocence). See also Commonwealth v. 

Norton, ___ Pa. ___, ___, 201 A.3d 112, 122 (2019) (stating: “The trial 
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court...properly factored into its exercise of discretion [a]ppellant’s knowledge 

of his available defenses when he pleaded and then inexplicably waited four 

months to file his motion to withdraw his plea”). 

A defendant’s failure to establish a plausible claim of innocence renders 

unnecessary a consideration of whether pre-sentence withdrawal of the guilty 

plea would substantially prejudice the Commonwealth. Carrasqullio, supra

at 706 n.9, 115 A.3d at 1293 n.9 (declining to address prejudice to 

Commonwealth, because defendant failed to assert plausible claim of 

innocence); Commonwealth v. Hvizda, 632 Pa. 3, 9, 116 A.3d 1103, 1107

(2015) (holding pre-sentence request to withdraw plea failed on sole basis 

that defendant made only bare assertion of innocence).

Additionally, an appellant bears the burden to ensure the certified record 

on appeal is complete and contains all the necessary materials for the 

reviewing court to perform its duty. Commonwealth v. Bongiorno, 905 

A.2d 998, 1000 (Pa.Super. 2006) (en banc), appeal denied, 591 Pa. 688, 917 

A.2d 844 (2007). Where a claim is dependent upon materials not provided in 

the certified record, the claim is waived. Commonwealth v. Muntz, 630 

A.2d 51, 55 (Pa.Super. 1993). Specifically, an appellant’s claim is waived 

where the appellant fails to include exhibits in the certified record necessary 

for appellate review. Commonwealth v. Proetto, 771 A.2d 823, 834 

(Pa.Super. 2001), aff’d, 575 Pa. 511, 837 A.2d 1163 (2003).

Instantly, Appellant filed his pre-sentence motions to withdraw his guilty 
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pleas nearly four and one-half years after he entered the pleas. Appellant’s

claim of innocence was grounded in: (1) the affidavits of probable cause 

stating the victims had identified Appellant’s brother as the shooter in the 

photo arrays, and (2) the surveillance footage purportedly showing Appellant 

was not the shooter. 

Nevertheless, Appellant failed to establish a plausible claim of 

innocence. First, at the outset of the preliminary hearing, the Commonwealth 

indicated the victims had viewed photo arrays during the police investigation. 

Appellant did not object or seek clarification of the prosecutor’s remarks as to 

whether the victims had identified Appellant in the photo arrays as a bystander 

or the shooter. Further, Appellant did not object to the victims’ identification 

testimony or question the victims about their photo array identifications. Also, 

Appellant made no argument regarding the alleged discrepancy in the 

affidavits of probable cause. Even though Appellant was aware of the 

surveillance video, he similarly did not introduce the video, or play it and ask 

the victims whether they recognized either individual in the video as Appellant. 

Furthermore, defense counsel conceded there was evidence showing 

Appellant was the shooter. 

Second, during the hearing on Appellant’s motion to withdraw his pleas,

he did not seek to reopen the evidentiary record. See Carrasquillo, supra. 

Appellant failed to attempt to introduce any sworn statement or testimony 

from Officer Ortiz to: (1) authenticate the photo arrays and describe his 
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observations of the victims completing the photo arrays; and (2) confirm or 

deny whether the affidavits of probable cause contained a typographical error. 

Appellant also did not argue that any other witnesses could identify someone 

other than Appellant as the shooter or present potential witnesses’ statements 

to that effect. Additionally, Appellant did not request to mark as exhibits and

introduce the photo arrays and the surveillance video, so they are not part of 

the certified record. See Bongiorno, supra; Pa.R.A.P. 1921. Furthermore, 

the court stated it had viewed the video, disagreed with Appellant’s position 

regarding what the video depicted in terms of the relative heights of the 

individuals on the video, and concluded Appellant made no plausible assertion 

of innocence. 

Third, the timing of Appellant’s pre-sentence motions to withdraw his 

pleas nearly four and one-half years after he entered his guilty pleas, coupled 

with Appellant’s failure to represent that he had maintained his innocence prior 

to filing the motions, weigh against a determination that his innocence claim

is colorable. See Norton, supra; Carrasquillo, supra; Islas, supra. 

Finally, to the extent Appellant asserts the Commonwealth bore a burden to 

show Appellant had no plausible innocence claim, that argument fails. Rather, 

Appellant bore the burden to demonstrate a colorable assertion of innocence. 

See Carrasquillo, supra. Based upon the foregoing, Appellant failed to

establish a plausible assertion of innocence, and the court properly exercised 

its discretion to deny Appellant’s pre-sentence motions to withdraw his guilty
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pleas. See id. 

In his second issue, Appellant argues the Commonwealth committed 

Brady4 violations when it withheld exculpatory evidence regarding the photo 

arrays at the preliminary hearing and withheld discovery years after Appellant 

entered his guilty pleas. Appellant asserts the Commonwealth elicited the 

victims’ preliminary hearing testimony that Appellant was the shooter even 

though it knew the testimony contradicted the affidavits of probable cause. 

Appellant submits the Commonwealth prevented him from impeaching the 

victims’ testimony by concealing that the victims’ allegedly had identified the 

shooter as Appellant’s brother on the photo arrays. Appellant posits the 

Commonwealth’s intentional misconduct prohibits it from retrying Appellant, 

pursuant to the Double Jeopardy Clause of the Pennsylvania Constitution. 

Appellant concludes this Court should vacate the judgments of sentence. We 

disagree.

As a prefatory matter, “[g]enerally, 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. Morrison, 173 A.3d 286, 290 (Pa.Super. 2017). 

Here, Appellant entered guilty pleas at both docket numbers. So, his

second issue regarding prosecutorial misconduct is waived for purposes of 

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4 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d. 215 (1963). 
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appeal. See id. Furthermore, Appellant failed to include in his Rule 1925(b) 

statement any mention of double jeopardy and Brady. Thus, even if 

Appellant’s prosecutorial misconduct claim was properly before us, his 

arguments regarding double jeopardy and Brady would be waived. See 

Castillo, supra. Accordingly, Appellant’s issues merit no relief, and we affirm 

the judgments of sentence. 

Judgments of sentence affirmed. 

Judge Lazarus joins this memorandum.

Judge Strassburger files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/13/20