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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JERRELL WILLIAMS, : No. 899 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, November 12, 2014,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0009274-2014

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 10, 2016

Jerrell Williams appeals from the November 12, 2014 judgment of 

sentence in the Court of Common Pleas of Philadelphia County following his 

conviction of possession of a controlled substance with intent to deliver.1

(“PWID”) We vacate and remand.

The Commonwealth charged appellant with PWID and knowing and 

intentional possession of a controlled substance2on May 16, 2014. On 

November 12, 2014, appellant and the Commonwealth entered a negotiated 

plea agreement. Appellant agreed to plead guilty to one count of PWID, and 

the Commonwealth agreed to nolle prosse the simple possession charge. 

 

1 35 P.S. § 780-113(a)(30).

2 35 P.S. § 780-113(a)(16).
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The trial court accepted the plea deal and sentenced appellant to the 

negotiated sentence of 6-23 months’ imprisonment followed by 3 years’ 

probation. Appellant received credit for time served and was paroled 

immediately.

On November 19, 2014, appellant filed a post-sentence motion which 

was denied by operation of law on March 19, 2015, pursuant to 

Pa.R.Crim.P. 720(B)(3)(a). On March 27, 2015, appellant filed a notice of 

appeal. The trial court did not order appellant to produce a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), 

and the trial court did not issue an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises the following issue on appeal:

Did not the lower court err by failing to allow 

appellant to withdraw his guilty plea where the plea 

was not knowing, intelligent, or voluntary as 

evidenced by the deficient, two-question guilty plea 

colloquy?

Appellant’s brief at 3.

When considering post-sentence motions for the withdrawal of a guilty 

plea, we are held to the following standard:

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

to higher scrutiny since courts strive to discourage 

entry of guilty pleas as sentence-testing devices.” 

[Commonwealth v. Flick, 802 A.2d 620, 623 

(Pa.Super. 2002).] A defendant must demonstrate 

that manifest injustice would result if the court were 

to deny his post-sentence motion to withdraw a 

guilty plea. Id., citing Commonwealth v. Gunter, 

565 Pa. 79, 771 A.2d 767 (2001); [Commonwealth 

v. Kirsch, 930 A.2d 1282, 1284 (Pa.Super. 2007)]. 
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“Manifest injustice may be established if the plea was 

not tendered knowingly, intelligently, and 

voluntarily.” Commonwealth v. Hodges, 789 A.2d 

764, 765 (Pa.Super. 2002), citing Commonwealth 

v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992). 

In determining whether a plea is valid, the court 

must examine the totality of circumstances 

surrounding the plea. Commonwealth v. 

Flanagan, 578 Pa. 587, 854 A.2d 489, 500 (2004). 

A deficient plea does not per se establish prejudice 

on the order of manifest injustice. Commonwealth 

v. Carter, 540 Pa. 135, 656 A.2d 463 (1995); 

Commonwealth v. Yager, 454 Pa.Super. 428, 685 

A.2d 1000 (1996), appeal denied, 549 Pa. 716, 

701 A.2d 577 (1997).

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

denied, 992 A.2d 885 (Pa. 2010).

As discussed above, to establish manifest injustice, 

Appellant must show that his plea was entered in an 

involuntary, unknowing, or unintelligent manner. 

[Commonwealth v. Stork, 737 A.2d 789, 790 

(Pa.Super. 1999).] To ascertain whether Appellant 

acted in such manner, we must examine the guilty 

plea colloquy. The colloquy must inquire into the 

following areas: “(1) the nature of the charges; 

(2) the factual basis of the plea; (3) the right to trial 

by jury; (4) the presumption of innocence; (5) the 

permissible range of sentences; and (6) the judge's 

authority to depart from any recommended 

sentence.” Commonwealth v. Burkholder, 719 

A.2d 346, 349 n. 5 (Pa.Super. 1998) (citation 

omitted). This Court evaluates the adequacy of the 

guilty plea colloquy and the voluntariness of the 

resulting plea by examining the totality of the 

circumstances surrounding the entry of that plea. 

Commonwealth v. Lewis, 708 A.2d 497, 501 

(Pa.Super. 1998).

Commonwealth v. Muhammad, 794 A.2d 378, 383-384 (Pa.Super. 2002).
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The comment to Rule 590 of the Pennsylvania Rules of Criminal 

Procedure states:

It is advisable that the judge conduct the 

examination of the defendant. However, 

paragraph (A) does not prevent defense counsel or 

the attorney for the Commonwealth from conducting 

part or all of the examination of the defendant, as 

permitted by the judge.[3] In addition, 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. 

This written colloquy would have to be 

supplemented by some on-the-record oral 

examination. Its use would not, of course, change 

any other requirements of law, including these rules, 

regarding the prerequisites of a valid guilty plea or 

plea of nolo contendere.

Pa.R.Crim.P. 590, Comment (emphasis added).

In the instant appeal, the record reflects that the following constituted 

the entire oral plea colloquy:

THE COURT: Mr. Williams -- (inaudible).

THE DEFENDANT: Yes, she did.

THE COURT: Do you understand it?

THE DEFENDANT: Yes, I do, sir.

THE COURT: Let me hear the facts . . . 

 

3

Paragraph (A) requires that all pleas be taken in open court. 

Pa.R.Crim.P. 590(A).
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Notes of testimony, 11/12/15 at 3.4

The oral colloquy conducted by the trial court does not meet the 

minimum requirements set forth by Rule 590. While the written guilty plea 

colloquy does cover the six factors as enumerated above by Burkholder, 

during the oral colloquy, the trial court only addressed one of the 

six factors--the factual basis for the plea.5 At no point during the oral 

colloquy did the trial court ascertain on the record whether appellant’s plea 

was “understanding and voluntary” pursuant to Rule 590. Moreover, during 

the oral colloquy, the trial court did not determine whether appellant was 

aware of the nature of the charges against him, that he was giving up his 

right to a trial by jury, that he was giving up the presumption of innocence, 

and that he was aware of the maximum penalties for the crimes to which 

appellant was pleading guilty.

We, therefore, find that the record fails to support the conclusion that 

appellant’s guilty plea was knowing, intelligent, and voluntary, and as a 

result, a manifest injustice occurred in this case. Accordingly, we vacate the 

 

4 The Commonwealth speculates that the inaudible question was a 

confirmation by the court that appellant’s attorney “had reviewed the written 

plea colloquy with him,” to which he replied, “Yes, she did.” 

(Commonwealth’s brief at 7 n.1.) Such speculation, even if founded, does 

not support the conclusion that appellant’s guilty plea was knowing, 

intelligent, and voluntary.

5 We note that while the trial court failed to address its ability to reject any 

negotiated sentence during the oral colloquy, this factor is not an issue in 

this appeal because the trial court accepted appellant’s negotiated plea 

agreement, and sentenced him accordingly.
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judgment of sentence and remand this case to the trial court for further 

proceedings.

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/10/2016