J. S17002/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ANGEL ULICES MOLINA, :

:

Appellant : No. 1849 WDA 2013

Appeal from the Judgment of Sentence February 12, 2008

In the Court of Common Pleas of Allegheny County 

Criminal Division No(s).: CP-02-CR-0005565-2006

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 28, 2015

Appellant, Angel Ulices Molina, appeals nunc pro tunc from the 

judgment of sentence entered in the Allegheny County Court of Common 

Pleas after he pleaded guilty to murder of the third degree and endangering 

the welfare of a child.1 Appellant claims he is entitled to a post-sentence 

withdrawal of his guilty plea and the aggregate sentence of twenty to forty 

years’ imprisonment was manifestly excessive.2 We affirm.

The trial court has summarized the factual and procedural background 

of this appeal.

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(c), 4304.

2 We have reordered Appellant’s arguments for the purposes of this appeal. 
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On or about October 15th, 2007, [Appellant] pled 

guilty to 3rd degree Homicide and Endangering [ ] 

the Welfare of a Child for the death of his 21-month 

old son.[3] The child was found dead on April 1st, 

2006 from blunt force trauma to his abdomen. An 

autopsy also revealed fractures to the child’s ribs as 

well as blunt force trauma to the child’s face. After 

the autopsy, [Appellant] was taken to the homicide 

division, waived his Miranda[4] Rights and admitted 

to having struck the child five days before the 

infant’s death.

[5]

 

The Allegheny County Medical Examiner 

determined that the force of the blow inflicted on the 

child caused his intestines to strike the back of his 

spinal column, which lacerated his organs and 

caused internal bleeding. 

The child’s mother, a co-defendant, charged with 

Endangering the Welfare of a Child, knew [Appellant] 

had struck his child. . . . [T]he child’s mother [gave 

statements] that the child made a bowel movement 

on [Appellant]’s couch. This incident enraged 

[Appellant], who struck the child repeatedly. The 

child could not eat because of the injuries inflicted 

upon him by [Appellant. Appellant] had, at one 

point prior to the child’s death, attempted to funnel 

V8 juice down into the child’s stomach. The child 

subsequently vomited. After one or two failed 

attempts to get the child to eat, the child died on 

April 1st, 2006. The medical examiner also 

determined that the child could have been saved by 

prompt medical care.

 

3 Appellant’s plea did not include an agreement on sentencing. Appellant 

was nineteen years old at the time of the child’s death. 

4 Miranda v. Arizona, 384 U.S. 436 (1966). 

5 Appellant was charged on April 2, 2006, with one count of homicide, 

generally, see 18 Pa.C.S. § 2501, and one count of endangering the welfare 

of a child, graded as a misdemeanor of the first degree. 
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[Appellant], an illegal immigrant whose native 

tongue is Spanish, had an interpreter with him at the 

time of his plea hearing. He swore under oath that 

he understood English, and that he was able to rely 

on the court interpreter for anything he did not 

understand. Throughout the proceedings, 

[Appellant] addressed the court in very functional 

English. He verified that the summary given by the 

District Attorney was correct, that he used to drink, 

and that the child’s mother did not actually see him 

hit his child. [Appellant’s plea counsel] stated that 

she felt confident in [Appellant]’s ability to fill out his 

colloquy forms, to understand the terms of his guilty 

plea, and that he had answered the questions on his 

colloquy form truthfully. 

On February 12, 2008, [Appellant] was sentenced to 

20-40 years in prison for 3rd Degree Homicide and [no 

further penalty for] Endangerment in the Welfare of a 

child. On February 19th, post-sentencing motions were 

filed, seeking a modification of the sentence [and 

withdrawal of the plea]. A clerical error that listed the 

sentence as 10-20 years was corrected[, and the postsentence motions were denied]. No appeal was taken 

challenging the sentence, and [Appellant, on July 11, 

2008,] then petitioned for relief under the Post Conviction 

Relief Act [(PCRA) , 42 Pa.C.S. §§ 9541-9546]. The Court 

appointed Matthew Debbis, Esquire, as counsel for 

[Appellant]. After reviewing all the records, appointed 

counsel filed a timely Turner/Finley[6] no merit letter, 

and withdrew from representing Mr. Molina. The trial court 

reviewed the Turner/Finley Motion and brief and Court 

records then denied the PCRA Motion.

[Appellant] appealed the denial for relief at No. 1645 

WDA 2011, and the Superior Court vacated the trial court 

order and remanded for an evidentiary hearing to 

 

6 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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determine whether [Appellant] asked trial counsel to file a 

direct appeal.

The trial court appointed Scott Coffey, Esquire, to 

represent [Appellant] in the PCRA evidentiary hearing 

scheduled for 10/23/13. On that day, [plea] counsel 

conceded she did not file the direct appeal, and the court 

reinstated [Appellant]’s direct appeal rights, nunc pro tunc.

Trial Ct. Op., 11/20/14, at 2-4 (record citations and footnotes omitted). 

Appellant filed a timely notice of appeal and complied with the trial court’s 

order to submit a Pa.R.A.P. 1925(b) statement. The trial court filed a 

responsive opinion. 

Appellant presents two questions in this appeal, which we have 

reordered as follows:

[ ] DID THE TRIAL COURT ERR IN DENYING APPELLANT'S 

REQUEST TO WITHDRAW HIS GUILTY PLEA SINCE 

APPELLANT IS INNOCENT OF THE INSTANT CRIMES, AND 

THE PLEA WAS INVOLUNTARY SINCE (A) APPELLANT, 

WHO[SE] FIRST LANGUAGE IS SPANISH, WAS NOT 

ADVISED OF THE ELEMENTS OF THE CRIME, MURDER 3, 

TO WHICH HE WAS PLEADING AND APPELLANT WAS NOT 

ADVISED OF AND DID NOT UNDERSTAND THE CONCEPT 

OF “MALICE”, AN ESSENTIAL ELEMENT OF MURDER 3, 

AND, (B) THE TRIAL COURT DID NOT ADVISE APPELLANT 

THAT HE COULD BE DEPORTED BACK TO MEXICO FOR 

PLEADING TO THESE CRIMES?

[ ] DID THE TRIAL COURT ERR IN DENYING APPELLANT'S 

POST SENTENCING MOTIONS SINCE HIS 20-40 YEAR 

SENTENCE OF IMPRISONMENT FOR MURDER 3 WAS 

MANIFESTLY EXCESSIVE IN LIGHT OF HIS GUILTY PLEA 

RATHER THAN PROCEEDING TO TRIAL, AND HIS 

ACCEPTANCE OF RESPONSIBILITY AND EXPRESSION OF 

REMORSE FOR HIS CRIME?

Appellant’s Brief at 3. 
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Appellant first contends the trial court erred in denying his postsentence request to withdraw his guilty plea. Id. at 20-22. He asserts 

actual innocence to murder of the third degree and claims his plea was 

unknowing because the trial court failed to provide a Spanish-speaking 

interpreter. Appellant also claims the plea colloquy was inadequate because 

it failed to apprise him of the elements of that crime, in particular, malice. 

Lastly, Appellant asserts the plea colloquy was defective because he was not

informed of the possibility of deportation. No relief is due. 

“When considering the propriety of a trial court’s denial of a motion to 

withdraw a guilty plea, we are bound by the determination of that court 

unless we find that it committed an abuse of discretion.” Commonwealth 

v. Mobley, 581 A.2d 949, 952 (Pa. Super. 1990) (citation omitted). 

Post-sentence motions for withdrawal are subject to higher 

scrutiny [than presentence motions] 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 postsentence 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.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) 

(citations and punctuation omitted). “[W]here the totality of the 

circumstances establishes that a defendant was aware of the nature of the 

charges, the plea court’s failure to delineate the elements of the crimes at 
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the oral colloquy, standing alone, will not invalidate an otherwise knowing 

and voluntary guilty plea.” Commonwealth v. Morrison, 878 A.2d 102, 

107 (Pa. Super. 2005) (en banc) (citing, inter alia, Commonwealth v. 

Martinez, 453 A.2d 940, 942-44 (Pa. 1982)). 

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. Historically, Pennsylvania courts adhere to this 

waiver principle because it 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. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (some 

citations and punctuation omitted), appeal denied, 87 A.3d 319 (Pa. 2014).

As to Appellant’s assertion that his plea was unknowing because of 

possible language barriers, our review reveals the following. Appellant 

confirmed he was able to read, write, and understand the English language 

in his written plea colloquy. Written Guilty Plea Explanation of Def.’s Rights, 

10/15/07, ¶ 4 (“written colloquy”). During the oral colloquy by the trial 

court, the presiding judge twice noted that a Spanish interpreter was 

available and advised Appellant to “[t]ell us to stop” if he did not understand 

anything. N.T., 10/15/07, at 2. The court asked Appellant if he understood 

English, and Appellant responded, “Yes.” Id. Appellant did not stop the 

proceedings based on a language barrier. The transcript also indicates the 

court used the interpreter only when it clarified Appellant’s history of mental 
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health treatment and whether that history affected his ability to enter the 

underlying plea. Id. at 22-23.

Appellant was also able to respond to the Commonwealth’s lengthy 

recitation of the factual basis of the plea. Id. at 8-17. He admitted striking 

the child, but asserted his girlfriend did not see him commit such acts. Id.

at 15, 17. We further note the trial court discussed with plea counsel 

whether Appellant was able to understand the written colloquy. Id. at 6. 

Plea counsel averred she sat with Appellant while completing the written 

colloquy and observed he had some difficulty understanding certain words, 

such as “threat.” Id. She stated, however, that she was “confident to a 

certain extent” that he understood the contents of the questions asked of 

him. Id. at 6-7. Thus, having reviewed the record, we discern no abuse of 

discretion in the trial court’s determination that the alleged language barrier 

did not affect the entry of Appellant’s plea. 

As to Appellant’s assertion that he was not apprised of the elements of 

murder of the third degree, our review reveals neither the written colloquy, 

nor the trial court’s oral colloquy expressly stated the elements of that 

offense or defined malice. Nevertheless, Appellant acknowledged in the 

written colloquy that he “discussed with [plea counsel] the elements of each 

charged offense[,]” “the factual basis of each charged offense[,]” and “how 

the facts in [his] case prove the elements of each charged offense.” Written 

Colloquy, at ¶¶ 6-8. At the guilty plea hearing, the Commonwealth informed 
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Appellant the plea was “to Third Degree Murder,” and summarized the 

factual basis for the plea in detail. N.T., 10/15/07, at 3, 8-14. That 

summary included allegations Appellant struck his twenty-one month old 

child with sufficient force to cause “the child’s intestines to strike the back of 

the spinal column” and lacerate the organs. Id., at 10-11. The child 

subsequently bled to death. Id. at 11. Appellant did not deny the 

substance of the Commonwealth’s allegations. Id. at 14-17. 

It is undisputed that the written and oral colloquies in this case were 

inadequate because they did not define third-degree murder as a killing 

committed with malice or the term malice. Nevertheless, the trial court’s 

failure to explain the elements of the offense on the record does not 

constitute per se prejudice amounting to manifest injustice. See Martinez, 

453 A.2d at 942-44; Broaden, 980 A.2d at 129; Morrison, 878 A.2d at 

108-09. In light of Appellant’s acknowledgement that plea counsel 

explained the elements of the offense to him and our review of the plea 

proceeding as a whole, we are constrained to conclude that the trial court 

did not err or abuse its discretion when denying Appellant’s post-sentence 

request to withdraw his plea.7 

 

7 Our case law mandates that we review the totality of the circumstances of 

a guilty plea to discern whether a defendant understood the elements of the 

offense to which he was pleading guilty. See Martinez, 453 A.2d at 942-

44; Broaden, 980 A.2d at 129; Morrison, 878 A.2d at 108-09. However, 

our courts and the interests of justice are better served when the trial judge

apprises the defendant of “the nature of the charge to which he or she is 
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Appellant’s final challenge to the validity of his guilty plea is that he 

was not apprised of the possibility of deportation. For the reasons that 

follow, we are compelled to conclude this claim is waived. 

Although not discussed by Appellant or the trial court, we note that 

before 2010, our courts regarded deportation as a “collateral consequence” 

of a guilty plea. See Commonwealth v. Frometa, 555 A.2d 92, 93 (Pa. 

1989), abrogated by Padilla v. Kentucky, 559 U.S. 356 (2010). Under

Frometa, “a defendant’s lack of knowledge of the collateral consequences of 

pleading guilty d[id] not undermine the validity of his guilty plea.” Id. 

Subsequently, on March 31, 2010, the United States Supreme Court decided 

Padilla, which addressed counsel’s duties to advise her client on adverse 

immigration consequences of a plea. See Padilla, 559 U.S. at 369. As we 

discussed in Commonwealth v. Descardes, 101 A.3d 105 (Pa. Super. 

2014) (en banc), Padilla held “that the Sixth Amendment requires defense 

counsel to advise defendant about the risk of deportation arising from a 

guilty plea. This particular claim of ineffective assistance of counsel did not 

exist until 2010 when the Supreme Court decided Padilla.” Descardes, 

101 A.3d at 108-09. Padilla thus abrogated the narrow holding of Frometa

that deportation is a collateral consequence of a plea. See Commonwealth 

v. Abraham, 62 A.3d 343, 347 (Pa. 2012). 

 

pleading guilty” on the record. See Pa.R.Crim.P. 590 cmt. Conducting a 

complete on-the-record colloquy is especially advisable where English is not 

the defendant’s primary language.
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Instantly, on February 19, 2008, plea counsel filed a timely postsentence motion on Appellant’s behalf, asserting he “alleged that his plea 

was not knowingly nor intelligently made[, and he] now maintains that he is 

innocent of these charges and wishes to proceed to trial.” Appellant’s Post 

Sentencing Mot., 2/19/08, at 2-3. At that time, Frometa stated the 

governing law. The United States Supreme Court did not decide Padilla

until more than two years after Appellant entered his plea and plea counsel 

filed the post-sentence motion. Although Padilla was decided during 

Appellant’s five-year effort to have his direct appeal reinstated through the 

PCRA, he did not request leave to amend or file a supplemental postsentence motions nunc pro tunc. Instead, Appellant raised this issue for the 

first time in his Pa.R.A.P. 1925(b) statement. 

Given the unique circumstances of this case, we conclude Appellant did 

not preserve his claim his plea was invalid due to the trial court’s failure to 

advise him of the possibility of deportation. Therefore, we decline to 

entertain this argument for the first time in this direct appeal. See Lincoln, 

72 A.3d 606, 609-10; Commonwealth v. Evans, 901 A.2d 528, 534 (Pa. 

Super. 2006). Thus, no relief is due.8 

 

8

In any event, we note Padilla concerned the effective assistance of 

counsel and no Pennsylvania court has held that Padilla applies to the 

adequacy of the trial court’s plea colloquy. Therefore, Padilla claims should 

generally be deferred until a post conviction relief proceeding. See

Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013). We note, 

however, some of our trial courts have included notice of possible 
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Appellant, in his second question presented, challenges the 

discretionary aspects of the twenty-to-forty year sentence imposed on the 

count of murder of the third degree.9 Appellant has complied with the 

procedural rules for preserving a discretionary sentencing claim by (1) 

securing permission to appeal nunc pro tunc, (2) preserving his sentencing 

claim in the post-sentence motions filed by plea counsel, and (3) including in 

his brief a Pa.R.A.P. 2119(f) statement. See Evans, 901 A.2d at 533-34. 

Accordingly, we proceed to consider whether Appellant’s claims raise a 

substantial question. See id. 

The following principles are well settled:

The determination of what constitutes a substantial 

question must be evaluated on a case-by-case basis. A 

substantial question exists only when the appellant 

advances a colorable argument that the sentencing judge's 

actions were either: (1) inconsistent with a specific 

provision of the Sentencing Code; or (2) contrary to the 

fundamental norms which underlie the sentencing process.

As to what constitutes a substantial question, this Court 

does not accept bald assertions of sentencing errors. An 

appellant must articulate the reasons the sentencing 

court’s actions violated the sentencing code. 

 

immigration consequences in their written plea colloquies. In the instant 

case, the written colloquy did not include such notice, nor were immigration 

consequences discussed during the oral colloquy. 

9 As noted above, Appellant entered an “open” plea to the charges. 

Therefore, his challenge to the discretionary aspects of the sentence are 

cognizable. See Commonwealth v. Dalberto, 648 A.2d 16, 19-21 (Pa. 

Super. 1994). We reiterate that the trial court imposed no further penalty 

on the misdemeanor count of endangering the welfare of a child.

 
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* * *

When imposing a sentence, a court is required to 

consider the particular circumstances of the offense and 

the character of the defendant. In particular, the court 

should refer to the defendant’s prior criminal record, his 

age, personal characteristics and his potential for 

rehabilitation. Where the sentencing court had the benefit 

of a presentence investigation report (“PSI”), we can 

assume the sentencing court was aware of relevant 

information regarding the defendant’s character and 

weighed those considerations along with mitigating 

statutory factors. Further, where a sentence is within the 

standard range of the guidelines, Pennsylvania law views 

the sentence as appropriate under the Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 170-71 (Pa. Super. 2010) 

(citations and punctuation omitted). 

Appellant, in his Pa.R.A.P. 2119(f) statement, alleges: (1) the “20-40 

year sentence was manifestly excessive[;]” (2) the trial court “did not

provide sufficient reasons for the excessive sentence[;]” and (3) the trial 

court inadequately considered mitigating factors, such as his acceptance of 

responsibility and decision to plead guilty. Appellant’s Brief at 12-13. We 

also note the suggested standard range minimum sentence was six years to 

the statutory limit of twenty years.10 Thus, Appellant’s twenty-to-forty year 

sentence at the upper end of the standard range. 

 

10 Appellant had a prior record score of zero. The offense gravity score for 

murder of the third degree was fourteen. The maximum penalty for murder 

of the third degree was forty years. 18 Pa.C.S. § 1103(d). 
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Following our review, we conclude that Appellant has not established a 

substantial question warranting review. See Moury, 992 A.2d at 171. In 

any event, having reviewed the entire record, we decline to disturb the 

assumption that the trial court considered Appellant’s mitigating 

circumstances when it reviewed the presentence investigation report. See 

id.; accord Commonwealth v. Hunzer, 868 A.2d 498, 514 (Pa. Super. 

2005); see also N.T., 2/12/08, at 4 (indicating trial court reviewed the 

presentence investigation report). Moreover, although the trial court’s 

statement of reasons for the sentence was brief, the maximum sentence 

imposed fell within the standard suggested range of the Sentencing 

Guidelines. Thus, the court was not required to provide a detailed statement 

of reasons for its sentence.11 See Hunzer, 868 A.2d at 514. Accordingly, 

under the prevailing law, we have no basis to disturb the trial court’s 

sentencing scheme. 

Judgment of sentence affirmed. 

 

11 Although no appellate relief is due based on the Appellant’s arguments, 

we note that there is no aggravated range sentence in the Sentencing 

Guideline for offenses with an offense gravity score of fourteen. Where, as 

here the Sentencing Guidelines suggest a wide range of standard minimum 

sentences, i.e., from six years to twenty years, a more complete statement 

of reasons would assist this Court in reviewing the trial court’s exercise of 

discretion when selecting a statutory maximum sentence. 

We also note that it appears Appellant will not be eligible for early 

parole for deportation. See 61 Pa.C.S. § 6143(a)(1), (3). Thus, there is 

support for Appellant’s contention that he will remain in in Pennsylvania 

custody until at least the expiration of the minimum sentence set by the trial 

court. Appellant’s Brief at 22. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/28/2015