J. S15025/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

RAFAEL RIVERA, :

:

APPELLANT :

: No. 952 EDA 2016

Appeal from the Judgment of Sentence November 16, 2015

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0006783-2015

 

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED APRIL 10, 2017

Appellant, Rafael Rivera, appeals from his Judgment of Sentence of 2-

4 years’ incarceration, following his nolo contendere plea to felony charges 

of Possession with Intent to Deliver (“PWID”), Possession of a Firearm, 

Firearms Not to be Carried without a License, and Conspiracy to PWID, and 

misdemeanor charges of Intent to Possess a Controlled Substance by a 

Person Not Registered, Carrying a Firearm in Public in Philadelphia, and 

Possession of an Instrument of Crime.1 We affirm.

On September 8, 2015, after a thorough colloquy discussed infra, 

Appellant entered an open nolo contendere plea to the above charges. 

 

1 35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 6105(a)(1), 18 Pa.C.S. § 

6106(a)(1), 18 Pa.C.S. § 903, 35 P.S. § 780-113(a)(16), 18 Pa.C.S. § 6108, 

and 18 Pa.C.S. § 907(a), respectively.
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On November 16, 2015, the court held a sentencing hearing at which 

it engaged counsel in a comprehensive discussion of the court’s sentencing 

options. During this discussion, but prior to the court placing its final 

sentencing determination on the record, Appellant’s counsel stated, “He 

wants, Your Honor, he wants to withdraw.” N.T. 11/16/15, at 33. The court 

did not rule on Appellant’s request to withdraw his guilty plea, and Appellant 

did not object further to the sentence announced in court.2 Following the 

hearing, the court sentenced Appellant to the above term of incarceration. 

Appellant timely filed a Motion for Reconsideration of Sentence, 

seeking to withdraw his nolo contendere plea and challenging the legality of 

his sentence on the misdemeanor charges. The court granted Appellant’s 

Motion in part, resentencing Appellant to no further penalty on the 

misdemeanor charges.3 Appellant filed a timely Notice of Appeal from his 

Judgment of Sentence on March 24, 2016. 

Appellant raises the following two issues on appeal:

 

2

In fact, it was not the court, but Appellant’s counsel, that placed the court’s 

final sentencing determination on the record. The court directed Appellant’s 

counsel to “see if [Appellant] understands the sentence and advise him.” 

N.T. at 35. Appellant’s counsel then stated, “So the sentence Your Honor, if 

I understand is two to four on the open, which is No. 9 on the list. Two to 

four plus three-years[’] probation, and there’s a consecutive one to two in 

the VOP, which is No. 8 on the Court’s list?” Id. To which the court 

responded, “Yes.” Id.

3 The court did not expressly rule on the portion of the Motion in which 

Appellant again sought to withdraw his nolo contendere plea.
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1. Was the evidence insufficient to establish (and was the 

plea colloquy therefore deficient to establish a factual basis 

for the plea) that [Appellant] possessed any firearm or 

instrument of crime (required for title 18, sections 6105, 

6106, 6108, and 907 (a firearm was found in a vacant lot 

that also had controlled substances connected to 

[Appellant], but other people had access to that lot and 

there was no evidence connecting [Appellant] to the 

firearm))? This issue includes, pursuant to Pa.R.App.Proc. 

1925(b), all subsidiary questions, including that the trial 

court erred in denying [Appellant’s] [M]otion to [W]ithdraw 

the plea during the colloquy, and/or before sentence was 

imposed, and/or for the “factual basis”-related relief 

requested in either of the two written [P]ost-[S]entence 

[M]otions.

2. Did the trial court err in denying the written [M]otion for 

[R]econsideration of [S]entence because the sentence for 

one or more of the counts was in or above the aggravated 

range of the guidelines without an adequate on-the-record 

justification; and/or in the alternative because (with 

respect to counts 1-3 and 5-7) the court failed correctly to 

calculate the guidelines, failed to state reasons for 

departing from the standard and/or aggravated range, 

and/or violated the fundamental norms of sentencing?

Appellant’s Brief at 2 (footnotes omitted); see also Appellant’s Pa.R.A.P. 

1925(b) Statement, 4/26/16, at 1-2 (unpaginated).

In his first issue, Appellant claims that his plea to gun possession 

charges was involuntary because the Commonwealth did not present 

sufficient evidence during his plea colloquy to establish that it was the 

Appellant who possessed a firearm or instrument of crime.4 Appellant avers, 

therefore, that the trial court erred in denying his Motion to Withdraw his 

 

4 Appellant waived his challenge to the sufficiency of the evidence when he 

entered his nolo contendere plea. See Commonwealth v. Moore, 468 

A.2d 791, 797 (Pa. Super. 1983).
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plea made “during the colloquy and/or before the sentence was imposed, 

and/or for the “factual basis”-related relief requested in either of the two 

written [P]ost-[S]entence Motions.” Appellant’s Brief at 3-4. Essentially, 

Appellant claims that the court erred in denying his Motions to Withdraw his 

Plea made both before and after the court sentenced him. In either case, 

Appellant is not entitled to relief. 

With respect to a Motion to Withdraw a plea made before sentencing, 

Pa.R.Crim.P. 591(A) provides that, the court may, in its discretion, permit 

the withdrawal of a plea of guilty or nolo contendere. 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 plea:

[T]rial 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-and-just reason will 

suffice to support a grant, unless withdrawal would work 

substantial prejudice to the Commonwealth.

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015) 

(holding that there is no per se rule regarding a pre-sentence request to 

withdraw a plea, and a bald assertion of innocence is not a sufficient reason 

to require a court to grant such a request.). 

However, if a defendant attempts to withdraw a plea after sentencing, 

his Motion is “subject to higher scrutiny[.]” Commonwealth v. Broaden, 

980 A.2d 124, 129 (Pa. Super. 2009). 
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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. (citations and quotation marks omitted). 

Before a court may accept a guilty plea, it must be satisfied that there 

is a sufficient factual basis for the plea. Commonwealth v. Yeomans, 24 

A.3d 1044, 1048 (Pa. Super. 2011). 

With respect to Appellant’s claim that the court erred in denying his 

pre-sentencing Motion to Withdraw, we find no error, as Appellant failed to 

place before the court any reasons in support of his Motion. Appellant’s 

Motion, such that it was, consisted only of the assertion by his counsel that, 

“He wants, Your Honor, he wants to withdraw.” In the absence of any 

reasons placed on the record in support, the trial court did not abuse its 

discretion in denying Appellant’s oral pre-sentence Motion to Withdraw his 

Plea.

We similarly find Appellant’s alternate claim—that the court erred in 

denying his post-sentence Motion to Withdraw his Plea—lacking in merit. 

Appellant argues that his nolo contendere plea was involuntary because it 

was premised on an allegedly deficient factual basis. Appellant’s Brief at 4. 
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However, our review of the record reveals that the Commonwealth’s factual 

basis was, indeed, sufficient.

During the court’s plea colloquy with Appellant, the Commonwealth 

provided the following factual basis for the plea:

Back on April 24, 2015, at approximately 6:00 p.m., 

Officer Walsh (sp) was doing a surveillance along with 

Officer Cessna (sp) on the 2900 block of Rosehill Street 

here in Philadelphia. They observed [Appellant], uh, being 

approached by a person later identified as a Jamie (sp) 

Pastor (sp) Rivera.

At that time, he – Mr. Pastor (sp) Rivera handed 

[Appellant] an unknown amount of U.S. currency at which 

point [Appellant] went through his pockets, couldn’t find 

anything, then undid his belt and went into the front of his 

pants. At which point he shrugged his shoulders and 

motioned for Pastor (sp) Rivera to go southbound. At 

which point Mr. Pastor (sp) Rivera did walk southbound out 

of view. After which [Appellant] went into a vacant lot that 

was located on the east side of Rosehill. 

As this was going on, Officer Cessna (sp) observed the codefendant, Samuel Torres[,] also on the east side of the 

street engaging in a hand-to-hand transaction with a buyer 

later identified as Christopher Schwartz (sp). That um –

let’s see.

The co-defendant had accepted U.S. currency, went into 

that vacant lot, returned, and gave the buyer an unknown 

object, which was later found to be one orange zip lock 

packet of crack cocaine. Shortly after this, [Appellant] and 

the co-defendant[,] Mr. Torres, both met up on the east 

side of the street. They exchanged some currency 

between each other, and they separated, but they both 

stayed on Rosehill Street.

Shortly after that, Mr. Pastor (sp) Rivera, who was the 

person that initially engaged [Appellant], returned to the 

block again and engaged in a hand-to-hand transaction 

with [Appellant]. At which point, afterwards, this – Mr. 
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Pastor (sp) Rivera, was stopped with one clear heat-sealed 

packet stamped “ENP” (sp) containing heroin. Shortly 

after which – after that, an unknown male approached 

both [Appellant] and the co-defendant. There was a handto-hand transaction involving the co-defendant. That 

buyer was not stopped.

After that last purchase, the co-defendant got on a bicycle 

which he was observed getting on to several times 

throughout the surveillance. Mr. Torres went up and down 

the streets. Officers, fearing that the co-defendant was 

going to be leaving the scene, concluded the surveillance.

Co-defendant was stopped with $202.00 U.S. currency as 

well as one brown cylinder of marijuana. [Appellant] was 

stopped with $15.00 U.S. currency. Officers went into that 

vacant lot where both [Appellant] and the co-defendant 

were going into. They found 11 packets of heroin in a 

clear zip lock packet stamped “ENP” (sp).

Further in the lot they found a larger bag containing 112 

packets of heroin with the same stamp, “ENP” (sp). And 

also – one second, let me just make sure this part is clear 

– directly next to that bag of 112 packets of heroin was a 

silver Walther PPK chambered in 380 Caliber loaded with 

six in the magazine and one in the chamber. [Appellant] 

at the time, due to his prior conviction[,] was not eligible 

to possess a gun, and that gun is operable.

N.T. 9/8/15, at 19-22.

We conclude that the Commonwealth’s evidence as set forth, supra, is 

sufficient for the finder of fact to infer that Appellant possessed the gun and 

drugs found in the lot. Accordingly, Appellant’s claim, that he entered his 

plea involuntarily because of allegedly deficient supporting facts, fails. 

In his second issue, Appellant claims that the trial court abused its 

discretion by imposing an allegedly excessive sentence. A claim of this 

nature challenges the discretionary aspects of Appellant’s sentence. 
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Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (citation 

omitted). Appellant “must therefore petition for permission to appeal those 

issues, as the right to pursue such a claim is not absolute.” 

Commonwealth v. Finnecy, 135 A.3d 1028, 1031 (Pa. Super. 2016) 

(citation and internal quotation marks omitted). In addition,

When challenging the discretionary aspects of the sentence 

imposed, an appellant must present a substantial question 

as to the appropriateness of the sentence. Two 

requirements must be met before we will review this 

challenge on its merits. First, an appellant must set forth 

in his brief a concise statement of the reasons relied upon 

for allowance of appeal with respect to the discretionary 

aspects of a sentence [pursuant to Pa.R.A.P. 2119(f)]. 

Second, the appellant must show that there is a 

substantial question that the sentence imposed is not 

appropriate under the Sentencing Code.

Id.

Where an appellant’s brief does not contain a statement under Rule 

2119(f) and the Commonwealth objects, the appellant has waived this issue 

on appeal. Commonwealth v. Montgomery, 861 A.2d 304, 308 (Pa. 

Super. 2004). Here, Appellant has not included a 2119(f) Statement in his 

Brief, and the Commonwealth objected. Therefore, Appellant’s challenge to 

the discretionary aspects of his sentence is waived. 

Judgment of Sentence affirmed.

President Judge Emeritus Ford Elliott joins this Memorandum.

Judge Bowes Concurs in Result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2017