J-A06041-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EVELYN MCBRYDE

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 662 WDA 2020

Appeal from the Judgment of Sentence Entered May 29, 2020

In the Court of Common Pleas of Washington County Criminal Division at 

No(s): CP-63-CR-0002519-2019

BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: MAY 7, 2021

Evelyn McBryde (Appellant) appeals from the judgment of sentence, of 

12 months’ probation, entered in the Washington County Court of Common 

Pleas following her guilty plea to retail theft.1 Appellant avers her plea was 

not knowing, voluntary, and intelligent because: (1) the trial court did not 

inform her on the record of the presumption of innocence and elements of the 

crime, and did not specifically ask whether she was pleading guilty to retail 

theft; and (2) she did not consent to appearing at the plea hearing by video. 

We affirm. We also grant Appellant’s “Application for Judicial Notice,” for this 

Court to take judicial notice of orders issued by the Pennsylvania Supreme 

Court and the Washington County Court of Common Pleas pertaining to the 

____________________________________________

1 18 Pa.C.S. § 3929(a)(1).
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COVID-19 pandemic. Finally, we deny Appellant’s “Application for Remand to 

File Post-Sentence Motions Nunc Pro Tunc.”

Appellant was charged with one count of retail theft, graded as a felony 

of the third degree.2 This count arose from Appellant’s taking an article of 

clothing, valued at $22.96, on April 2, 2019, from a Target store in South 

Strabane Township, Washington County.

This case proceeded to a plea and sentencing hearing on May 29, 2020. 

We note this date fell within the general, statewide COVID-19 judicial 

emergency declared by the Pennsylvania Supreme Court, and the Washington 

County Court of Common Pleas’ extension of the statewide judicial emergency 

in that county. Appellant was then in custody at the Allegheny County jail on 

unrelated charges, and she appeared at the plea and sentencing hearing via

video conference. She was represented by Josh Carroll, Esquire (Plea 

Counsel), an assistant public defender; he and the assistant district attorney 

were in court.

Pertinent to Appellant’s claims on appeal, we note the following 

discussion at the plea hearing. Plea Counsel advised or reminded Appellant 

of the plea offer, of, inter alia, time-served to 12 months’ probation, a drug 

and alcohol evaluation, restitution, and “no return to [the] Target” store. N.T., 

____________________________________________

2 Retail theft is a felony of the third degree when, inter alia, “the offense is a

third or subsequent offense, regardless of the value of the merchandise.” 18

Pa.C.S. § 3929(b)(1)(iv).
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5/29/20, at 5-6 (Plea Counsel stating to appellant, “I don’t know if you recall 

the plea offer. It was time served to twelve months[ . . .”]). After discussion 

about the payments of Appellant’s bonds in both Washington and Allegheny 

Counties, the following exchange occurred:

[Appellant:] And so what is the — what is the plea?

[Plea Counsel:] The plea offer is a plea of guilty to retail theft, 

felony of the third degree; time served to twelve months 

probation; drug and alcohol evaluation and follow-through with 

any recommended treatment; no contact with Target; pay 

restitution of $22.96 to Target; and to generally pay the other 

costs of prosecution.

Id. at 10-11. Appellant stated, “I don’t have a problem with the plea,” but 

asked for clarification as to whether her drug and alcohol evaluation would 

have to be conducted in prison, and thus whether it was a condition to her 

release. Id. at 11-12 (“I don’t want to get stuck taking this plea and then 

they say well now, guess what? You got to wait for a drug and alcohol 

evaluation [before you can be released from Washington County jail.]”). The 

trial court responded that Appellant did not have to complete her drug and 

alcohol evaluation in prison, and instead could do it when she reported to the 

Washington County probation office. Id. at 12. The court then took an 

approximately four-minute recess for Appellant and Plea Counsel to converse

privately. Id.

Upon reconvening, the trial court asked both Plea Counsel and Appellant 

whether the offer was acceptable. N.T., 5/29/20, at 13. Plea Counsel replied 

in the affirmative, and Appellant stated, “Yes, sir.” Id. The trial court then 
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conducted an oral plea colloquy. Appellant responded, “Yes”, or indicated that 

she understood, each of the following: she has been charged criminally; she 

has a right to a trial by judge or by jury; she has a right to counsel at trial; 

she has “seen the Criminal [Complaint] that was filed against [her] in this 

case;” the complaint “forms the foundation of why” Appellant is in court for 

the plea hearing; “there are facts which would support the charge;” if she 

were to go to trial instead of pleading, “it is always the Commonwealth’s 

burden . . . to prove . . . that [she] committed this alleged crime;” the 

Commonwealth bore the burden to prove “every element of this charge”

beyond a reasonable doubt, which “is the most difficult burden of proof in the 

law for a prosecutor to meet;” if “the Commonwealth could not prove . . . 

beyond a reasonable doubt that [she] committed this crime, then the charge 

would be dismissed” and no penalty would be imposed; the charge was a 

felony of the third degree and carried a maximum sentence of seven years’

incarceration; and under “the State Sentencing Guidelines, . . . someone in 

[Appellant’s] position, particularly based upon any past criminal history . . . 

and any aggravating or mitigating . . . circumstances[,] the standard sentence 

may be much less than the maximum.” Id. at 13-16. Appellant also 

responded, “Yes,” when the court asked her whether she had an opportunity 

to talk with her attorney and was entering her plea voluntarily. Id. at 16-17.

The trial court explained it would impose the agreed-upon sentence: 

time served to 12 months’ probation, with requirements that she undergo a 
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drug and alcohol evaluation, have no contact with Target, and pay restitution 

of $22.96. N.T., 5/29/20, at 20. Immediately thereafter, Appellant asked 

what her “paperwork” will say. Id. The court responded, “That you pled guilty 

to a felony of the third degree, retail theft; credit for time served to twelve 

months. There will be a box on the Order that says [Appellant] can be 

released today on this case.” Id.

We note the certified record does not include any written plea or written 

plea colloquy, and Appellant avers none was completed. See Appellant’s Brief 

at 11.

Appellant did not file any post-sentence motion. In an order dated June 

25, but stamped as “filed” on June 26, 2020, the trial court appointed present 

counsel, John Egers, Jr., Esquire, to represent Appellant, noting Appellant 

wished “to file an appeal in which she is alleging ineffective assistance of 

counsel.” Order, 6/26/20. However, on the same day this order was filed, 

Plea Counsel filed a notice of appeal. The following day, July 7th, the trial 

court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal. In response, Attorney Egers timely filed a 

statement, which claimed, for the first time in this case, that Appellant’s guilty 

plea was not entered knowingly, voluntarily or intelligently, and that she did 

not waive her right to appear in-person at the plea and sentencing hearing. 

The trial court issued an opinion on August 3, 2020, addressing the merits of 

these claims.
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Appellant presents two issues for our review:

I. Was [Appellant’s] plea of guilty entered knowingly, voluntarily 

and intelligently when she was not informed on the record of the

presumption of innocence, the elements of the crime of retail 

theft, and not asked if she was, in fact, pleading guilty to the 

charge of retail theft?

II. Was [Appellant’s] guilty plea and sentencing entered into 

knowingly, voluntarily and intelligently when she did not waive her 

right to be present for the guilty plea and sentencing or otherwise 

consent to have a guilty plea and sentencing hearing by video 

conference conducted at the Washington County Courthouse 

where she attended the video conference from the Allegheny 

County Jail?

Appellant’s Brief at 4.

On the same day Attorney Egers filed Appellant’s brief, he also filed an 

application for a remand to file post-sentence motions nunc pro tunc. In this 

application, as well the argument section of the brief, Attorney Egers avers: 

(1) Plea Counsel did not file any post-sentence motion challenging the validity 

of Appellant’s plea, and thus did not preserve this issue for appeal; (2) 

Attorney Egers was appointed by the trial court on the same day Plea Counsel 

filed the notice of appeal; and (3) the filing of the notice of appeal divested 

the trial court of jurisdiction in this matter, before Attorney Egers had an 

opportunity to review the record and the issues. Appellant’s Brief at 13-14; 

Appellant’s Application for Remand to File Post-Sentence Motions Nunc Pro 

Tunc at 1-2. Attorney Egers further notes “the notice of appeal was confusing 

[as] claims of ineffective assistance of counsel are typically addressed in Post 
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Conviction Relief Act[

3 m]atters after completion of any direct appeal[.]” 

Appellant’s Brief at 14. Appellant thus requests a remand to the trial court so 

that she can file a post-sentence motion nunc pro tunc, to challenge the guilty 

plea.4

We agree with the points, enumerated above, presented by Attorney 

Egers. See Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) 

(“Jurisdiction is vested in the Superior Court upon the filing of a timely notice 

of appeal.”); Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 

2003) (challenge to guilty plea is waived if not raised at the sentence colloquy, 

at the sentencing hearing, or through a post-sentence motion, and “[a] party 

cannot rectify the failure to preserve an issue by proffering it in response to a 

Rule 1925(b) order”) (citation omitted).

We further consider the following Pennsylvania jurisprudence on per se

ineffective assistance by counsel. Generally, a defendant claiming they were 

denied their constitutional right to effective assistance of counsel must show, 

pursuant to Strickland v. Washington, 466 U.S. 668 (1984):

(1) his underlying claim is of arguable merit; (2) counsel’s action 

or inaction lacked a reasonable strategic basis; and (3) but for 

counsel’s conduct, there is a reasonable probability that the 

outcome of the proceedings would have been different. However, 

in certain limited circumstances, including the actual or

constructive denial of counsel, prejudice may be so plain that the 

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3 42 Pa.C.S. §§ 9541-9546.

4 The Commonwealth has not responded to Appellant’s request for a remand.
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cost of litigating the issue of prejudice is unjustified, and a finding 

of ineffective assistance of counsel per se is warranted.

Commonwealth v. Rosado, 150 A.3d 425, 429 (Pa. 2016) (citations 

omitted). Our Supreme Court has “held that errors which completely

foreclose appellate review amount to a constructive denial of counsel and thus 

ineffective assistance of counsel per se, whereas those which only partially

foreclose such review are subject to the ordinary Strickland . . . framework.” 

Id. at 433. In Rosado, the Court concluded that an attorney’s “filing an 

appellate brief which abandons all preserved issues in favor of unpreserved 

ones constitutes ineffective assistance of counsel per se.” Id. at 425-26

(footnote omitted).

The particular facts of the instant matter may be distinguished from 

those in Rosado. In Rosado, the defense attorney filed a post-sentence 

motion, unsuccessfully challenging the sufficiency of the evidence, then a 

notice of appeal and a court-ordered Rule 1925(b) statement. Rosado, 150 

A.3d at 426. The Rule 1925(b) statement challenged the discretionary aspects 

of the defendant’s sentence, the exclusion of certain evidence, and a juror’s 

alleged concealment of bias during voir dire. Id. In the appellate brief to the 

Superior Court, however, the same attorney abandoned the three Rule 

1925(b) claims, and instead “raised as his sole appellate issue the 

unpreserved sufficiency claim.” Id. On the other hand, in this matter, it was 

Plea Counsel who did not file any post-sentence motion before filing a notice 
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of appeal. The Rule 1925(b) statement and present appellate brief were filed 

by another attorney, Attorney Egers.

Furthermore, Plea Counsel’s action did not result in the “complete

deprivation of appellate review;” indeed, Plea Counsel filed a timely notice of 

appeal. See Rosado, 150 A.3d at 428. Nevertheless, like the attorney in

Rosado, Attorney Egers has now filed — under the particular procedural 

history that had already occurred before he was appointed in this case — a 

brief that only presents issues that are waived. The ultimate effect to

Appellant is the same as that in Rosado: because of her attorney or attorneys’

actions, “all meaningful appellate review” has been forfeited. See id. at 434. 

Accordingly, under the peculiar circumstances of this matter, we determine 

Plea Counsel rendered per se ineffective assistance of counsel, to which 

Appellant is entitled immediate relief. See id. at 428, 434. As noted above, 

the Commonwealth has not opposed Appellant’s request for a remand.

We now consider what relief is appropriate. We could grant Appellant’s 

petition for a remand to file a post-sentence motion nunc pro tunc. Appellant’s 

petition, as well as her brief, however, aver that the issues she would raise 

are the same as those in her Rule 1925(b) statement, as well as her appellate 

brief. The trial court has addressed these claims on the merits. Furthermore, 

Appellant’s brief sets forth a full discussion of her issues. Thus, in the interests 

of judicial economy, we deny Appellant’s petition for remand, and instead, we 

reach the merits of the claims presented in her brief.
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First, Appellant avers her guilty plea was not entered voluntarily. In 

support, she maintains the trial court failed to advise her that she is presumed 

innocent, as required by Pa.R.Crim.P. 590 (discussed infra). Appellant’s Brief 

at 16-17, citing Moore v. Commonwealth, 384 A.2d 1206, 1208 (Pa. 1978)

(reversing judgment of sentence after finding trial court failed to inform 

defendant, during guilty plea colloquy, of the constitutional presumption of 

innocence). Appellant disputes the trial court’s reasoning that the colloquy 

was nevertheless proper under the totality of the circumstances, see Trial Ct. 

Op., 8/3/20, at 3, and maintains the advisement of the presumption of 

innocence is mandatory. Appellant’s Brief at 18-19 (arguing the holding in 

Taylor v. Kentucky, 436 U.S. 478 (1978) — that a “jury instruction on the 

presumption of innocence may be necessary in certain cases to purge the taint 

of the fact a defendant was subject to arrest on criminal charges” — should 

be extended to require a trial court, in a plea colloquy, to advise a defendant 

of the presumption of innocence). Next, Appellant asserts the trial court did 

not advise her of the elements of retail theft, likewise required by Rule 590, 

and that “there was no recitation of facts . . . identified as the basis for the 

plea.” Id. at 21-22. Whereas the trial court considered that Appellant 

acknowledged she reviewed the criminal complaint, which set forth the 

elements, see Trial Ct. Op. at 4, Appellant emphasizes “it is the criminal 

information that is the foundation of the charges.” Appellant’s Brief at 21. 

Finally, Appellant insists that she “never pled guilty,” as: there was no written, 
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signed plea, and she “was never asked what her plea was or if she was 

pleading guilty.” Id. at 23-24. We conclude no relief is due.

Although the trial court did not entertain, in the proceedings below, any 

timely motion to withdraw Appellant’s plea, the court addressed Appellant’s 

claims in its opinion. Accordingly, we consider the following standard of 

review:

It is well-settled that the decision whether to permit a defendant 

to withdraw a guilty plea is within the sound discretion of the trial 

court.

[ ]

. . . When a defendant seeks to withdraw a plea after 

sentencing, [s]he “must demonstrate prejudice on the order of 

manifest injustice.” . . . 

“Manifest injustice occurs when the plea is not tendered 

knowingly, intelligently, voluntarily, and understandingly.” In 

determining whether a plea is valid, the court must examine the 

totality of circumstances surrounding the plea. “Pennsylvania law 

presumes a defendant who entered a guilty plea was aware of 

what [s]he was doing, and the defendant bears the burden of 

proving otherwise.”

Commonwealth v. Hart, 174 A.3d 660, 664-65 (Pa. Super. 2017) (citations 

omitted).

The comment to Pennsylvania Rule of Criminal Procedure 590 provides 

that “in determining whether a defendant understands the full impact and 

consequences of the plea,” the court “should ask” “[a]t a minimum:”

(1) Does the defendant understand the nature of the charges to 

which he or she is pleading guilty or nolo contendere?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he or she has the right to

trial by jury?
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(4) Does the defendant understand that he or she is presumed 

innocent until found guilty?

(5) Is the defendant aware of the permissible range of sentences

and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by the 

terms of any plea agreement tendered unless the judge accepts 

such agreement?

(7) Does the defendant understand that the Commonwealth has 

a right to have a jury decide the degree of guilt if the defendant 

pleads guilty to murder generally? 

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

Our Supreme Court has explained:

Although this Court has stressed its strong preference for a 

dialogue in colloquies with meaningful participation by the 

defendant throughout, there is no set manner, and no fixed terms, 

by which factual basis must be adduced. Moreover, while the 

Court has admonished that a complete failure to inquire into any 

one of the six[5] mandatory subjects [in the comment to Rule 590] 

generally requires reversal, . . . in determining the availability of 

a remedy in the event of a deficient colloquy, it has in more recent 

cases moved to a more general assessment of the knowing, 

voluntary, and intelligent character of the plea, considered on 

the totality of the circumstances.

Commonwealth v. Flanagan, 854 A.2d 489, 500 (Pa. 2004) (emphasis 

added).

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5 At the time Flanagan was issued, the comment to Rule 590 set forth six 

elements.
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Finally, we note the pertinent elements of retail theft: “A person is guilty 

of theft if [s]he unlawfully takes, or exercises unlawful control over, movable 

property of another with intent to deprive him thereof.” 18 Pa.C.S. 3921(a).

After a thorough review of the record, the parties’ briefs, the relevant 

law, and the well-reasoned opinion of the trial court, we conclude there is no 

merit to Appellant’s first issue, and we affirm on the basis of the court’s 

opinion. See Trial Ct. Op. at 3-4 (finding: (1) although the “lengthy” oral plea 

colloquy did not “include the specific phrase ‘presumption of innocence[,]’” the 

colloquy was proper under the totality of the circumstances; (2) court properly 

informed Appellant she had a right to a jury trial, which required a unanimous 

verdict to find her guilty; (3) court informed Appellant that the Commonwealth 

bore the burden of proving her guilt beyond a reasonable doubt; (4) Appellant 

acknowledged she saw the criminal complaint and she understood “it formed 

the foundation of the case against her” and “there were facts that would 

support [the] charge;” (5) Appellant affirmatively pleaded guilty, where, after 

asking the court “what [her] paperwork is going to say,” the court responded 

the files would state that she pleaded guilty to retail theft, a felony of the third 

degree, and Appellant stated, “Okay.”). Thus, we do not disturb the trial 

court’s “find[ing] that [Appellant] entered her guilty plea knowingly, willingly, 

and intelligently.” See id. at 4.

In her second issue, Appellant asserts the plea and sentencing hearing 

“were conducted remotely,” with her appearing via videoconference, “without 
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her consent.” Appellant’s Brief at 25. At this juncture, we grant Appellant’s 

application for this Court to take judicial notice of: (1) the Pennsylvania 

Supreme Court’s March 16, April 1, and April 28, 2020, orders pertaining to 

the COVID-19 statewide judicial emergency; and (2) the Washington County 

Court of Common Pleas President Judge’s April 23, 2020, order, likewise 

pertaining to the COVID-19 pandemic. See Appellant’s Application for Judicial 

Notice at 1-2.

Appellant challenges the trial court’s reliance, on the pandemic-related

orders, for conducting the plea hearing partially remotely, with Appellant 

appearing via videoconference. She asserts the pandemic-related restrictions 

did not abridge her constitutional right to be present for the proceeding. 

Appellant’s Brief at 27, citing Commonwealth v. Lee, 566 A.2d 1205, 1207 

(Pa. Super. 1989) (“[I]t is a leading principle of criminal law that after 

indictment, nothing shall be done in the absence of the defendant, this right 

can be waived by the defendant’s words or actions.”). Here, Appellant 

contends, “[t]he record reveals no waiver of [Appellant’s] right to be present 

in person . . . and the burden of proving this waiver of a constitutional right 

‘rests with the Commonwealth.’” Appellant’s Brief at 28, citing 

Commonwealth v. Tizer, 684 A.2d 597, 604 (Pa. Super. 1995).

After careful review, we likewise adopt the trial court’s analysis in 

disposing of this issue. See Trial Ct. Op. at 5 (reasoning: (1) on March 16, 

2020, the Pennsylvania Supreme Court “granted courts across the 
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Commonwealth the right to conduct proceedings via video and telephonic 

means[;]” (2) “[t]his statewide judicial emergency was enacted due to the 

COVID-19 pandemic and driven by health[ ] and safety concerns[;]” (3) on 

“April 1, 2020, the Supreme Court authorized and encouraged the use of . . . 

communication . . . ‘systems providing for two-way simultaneous 

communication of image and sound[;]’” and (4) pursuant to the Supreme 

Court’s and the Washington County Court of Common Pleas’ orders, the trial 

court was authorized to conduct Appellant’s plea and sentencing hearing via

videoconferencing).

For the foregoing reasons, we conclude no relief is due on Appellant’s 

challenges to the validity of her guilty plea and her videoconference at the 

plea and sentencing hearing, two months after the Pennsylvania Supreme 

Court declared a statewide judicial emergency due to the COVID-19 pandemic. 

We thus affirm Appellant’s judgment of sentence.

We direct that a copy of the trial court’s August 3, 2020, opinion be filed 

along with this memorandum and attached to any future filings in this case.

Judgment of sentence affirmed. Appellant’s “Application for Judicial 

Notice” granted. Appellant’s “Application for Remand to File Post-Sentence 

Motions Nunc Pro Tunc” denied.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/7/2021
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