J. S44011/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

PAUL BROWN, : No. 3104 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, August 18, 2015,

in the Court of Common Pleas of Lehigh County

Criminal Division at No. CP-39-CR-0000363-2015

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2016

Paul Brown appeals from the August 18, 2015 judgment of sentence 

entered by the Lehigh County Court of Common Pleas as the result of his 

conviction of criminal use of a communications facility.1 We affirm.

The trial court provided the following factual and procedural history:

On [August 27, 2015, appellant] filed Post 

Sentence Motions in the form of a Motion for 

Reconsideration of Sentence and a Motion to 

Withdraw Guilty Plea. The relevant facts are as 

follows: On July 8, 2015, [appellant] entered a plea 

of guilty to one (1) count of Criminal Use of a 

Communications Facility. Pursuant to the negotiated 

plea agreement, the minimum sentence was not to 

exceed the standard range of the sentencing 

guidelines and there was no opposition to a County 

Sentence. A Pre-Sentence Investigation report was 

ordered. On August 18, 2015, [appellant] was 

sentenced to an aggregate term of imprisonment of 

 

1 18 Pa.C.S.A. § 7512(a).
J. S44011/16

- 2 -

not less than one and [one] half (11⁄2) years nor 

more than five (5) years in a state correctional 

facility. Thereafter, on August 27, 2015, [appellant] 

filed the within Post Sentence Motions pursuant to 

Pennsylvania Rule of Criminal Procedure Rule 720. A 

hearing was conducted on [appellant’s] motion on 

September 15, 2015.

Trial court opinion, 11/16/15 at 1-2.

The trial court denied appellant’s motion on September 16, 2015. On 

October 15, 2015, appellant filed a timely notice of appeal. The trial court 

ordered appellant to produce a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b) on October 19, 2015, and appellant 

complied on November 9, 2015. On November 16, 2015, the trial court 

issued an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises the following issues for our review:

1. Did the lower court err and abuse its discretion 

when it denied [appellant’s] motion to 

withdraw his guilty plea?

2. Did the lower court err and abuse its discretion 

when it denied [appellant’s] motion to 

reconsider sentence?

Appellant’s brief at 6. 

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 
J. S44011/16

- 3 -

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)]. 

“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).
J. S44011/16

- 4 -

Commonwealth v. Muhammad, 794 A.2d 378, 383-384 (Pa.Super. 2002).

The law does not require that an appellant be 

pleased with the results of the decision to enter a 

guilty plea; rather “[a]ll that is required is that 

[appellant’s] decision to plead guilty be knowingly, 

voluntarily and intelligently made.” 

Commonwealth v. Moser, 921 A.2d 526, 528-29 

(Pa.Super. 2007).

A defendant is bound by the statements made during 

the plea colloquy, and a defendant may not later 

offer reasons for withdrawing the plea that contradict 

statements made when he pled. Commonwealth 

v. McCauley, 797 A.2d 920, 922 (Pa.Super. 2001).

Commonwealth v. Brown, 48 A.3d 1275, 1277-1278 (Pa.Super. 2012), 

appeal denied, 63 A.3d 773 (Pa. 2013).

Appellant avers that he never understood the nature of the plea 

agreement. (Appellant’s brief at 11.) This allegation is belied by the record. 

During the guilty plea hearing, the following facts were read into the record 

and acknowledged by appellant:

THE COURT: All right. I’ll hear the facts.

[THE COMMONWEALTH]: Your Honor, between the 

month of October 1st and October 31st of last year, 

2014, Agents with the Office of the Attorney General 

obtained Orders from the Superior Court to intercept 

the telephone lines of Luis Oquendo, Jose Santana, 

and a Juhad Keyes.

A number subscribed to Mr. Brown appeared on 

Mr. Oquendo’s line and conversations were 

intercepted by those Agents between Mr. Oquendo 

and Mr. Brown that the Agents interpreted as 

relating to the delivery of cocaine.
J. S44011/16

- 5 -

Those conversations -- excuse me -- those intercepts

were, I would say, approximately four to five during 

the course of the month.

THE COURT: Is that what you did?

[APPELLANT]: Yes, ma’am.

THE COURT: You used the telephone to commit 

crime.

[APPELLANT]: Yes, ma’am. I was, um, at the 

present time I wasn’t here in Pennsylvania. I was in 

North Carolina. And, um, an associate that I 

knew called me asking me for some drugs and I 

referred him to somebody else, so, yes, ma’am.

Notes of testimony, guilty plea, 7/8/15 at 6-7 (emphasis added).2

At his sentencing hearing, appellant avers that his acceptance of the 

guilty plea was the result of a “misunderstanding,” and that the plea had 

“nothing to do with the sale, distribution of cocaine.” (Appellant’s brief at 

12; notes of testimony, sentencing, 8/18/15 at 6-7.) After consultation with 

defense counsel during a court recess, appellant later acknowledged 

“plead[ing] out [] referring to a phone call that [he] made for someone else 

. . .” (Id. at 9.)

Because appellant is bound by the statements he made during the 

guilty plea colloquy, we, therefore, find that the record supports the 

conclusion that appellant’s guilty plea was knowing, intelligent, and 

 

2 During the guilty plea hearing, appellant, when asked by the trial court if 

he had any questions regarding his rights or the charge against him, 

answered, “No, ma’am. I understand my wrongdoing and I’m just here to 

own up to it.” (Notes of testimony, 7/8/15 at 6-7.)
J. S44011/16

- 6 -

voluntary, and as a result, a manifest injustice did not occur in this case. 

Accordingly, we find that appellant’s first issue has no merit.

In appellant’s second issue for our review, appellant requests that we 

review his sentence imposed by the trial court.

[T]he proper standard of review when considering 

whether to affirm the sentencing court’s 

determination is an abuse of discretion. . . . [A]n 

abuse of discretion is more than a mere error of 

judgment; thus, a sentencing court will not have 

abused its discretion unless the record discloses that 

the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, 

bias or ill-will. In more expansive terms, our Court 

recently offered: An abuse of discretion may not be 

found merely because an appellate court might have 

reached a different conclusion, but requires a result 

of manifest unreasonableness, or partiality, 

prejudice, bias, or ill-will, or such lack of support so 

as to be clearly erroneous.

The rationale behind such broad discretion and the 

concomitantly deferential standard of appellate 

review is that the sentencing court is in the best 

position to determine the proper penalty for a 

particular offense based upon an evaluation of the 

individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010) 

(citation omitted).

Challenges to the discretionary aspects of sentencing 

do not entitle an appellant to review as of right. 

Commonwealth v. Sierra, [752 A.2d 910, 912 

(Pa.Super. 2000)]. An appellant challenging the 

discretionary aspects of his sentence must invoke 

this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to 

determine: (1) whether appellant has 
J. S44011/16

- 7 -

filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the 

issue was properly preserved at 

sentencing or in a motion to reconsider 

and modify sentence, see Pa.R.Crim.P. 

[720]; (3) whether appellant’s brief has 

a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial 

question that the sentence appealed 

from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. 

§ 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

Here, we begin our analysis by determining whether appellant has 

complied with the procedural requirements of challenging his sentence. 

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902 

and 903. Second, he properly preserved the issue in a motion to reconsider 

sentence which was filed on August 27, 2015. The sentencing court denied 

appellant’s motion on September 16, 2015.

Third, appellant included a Rule 2119(f) statement in his brief, in 

which he avers that “the lower court abused its discretion when it imposed 

an excessive sentence of eighteen months[]. An eighteen (18) month 

sentence is the top of the standard sentencing guidelines.” (Appellant’s brief 

at 3.) In his Rule 2119(f) statement, appellant relies on Commonwealth v. 

Monahan, 860 A.2d 180 (Pa.Super. 2004), when he states that the 

sentencing court gave insufficient reasons for sentencing appellant to the 

high end of the standard guidelines range. Monahan is inapposite here. In 

Monahan, this court found that the sentencing court erred when it failed to 
J. S44011/16

- 8 -

provide sufficient reasons on the record for sentencing the defendant 

in excess of the aggravated range of the guidelines. Id. at 182. 

A substantial question is only raised on a sentence within the 

guidelines when there are circumstances in which “the application of the 

sentencing guidelines would be clearly unreasonable.” Commonwealth v. 

Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013), appeal denied, 91 A.3d 161 

(Pa. 2014), quoting 42 Pa.C.S.A. § 9781(c)(2).

In determining whether a substantial question exists, 

this Court does not examine the merits of whether 

the sentence is actually excessive. Commonwealth 

v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). 

Rather, we look to whether the appellant has 

forwarded a plausible argument that the sentence, 

when it is within the guideline ranges, is clearly 

unreasonable. Concomitantly, the substantial 

question determination does not require the court to 

decide the merits of whether the sentence is clearly 

unreasonable.

Dodge, 77 A.3d at 1270. Here, appellant alleges that the sentencing court 

failed to consider his rehabilitative needs when crafting his sentence. 

Appellant also alleges that the sentence imposed was excessive. We have 

found that such a combination constitutes a substantial question. 

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015) 

(en banc), appeal denied, 126 A.3d 1282 (Pa. 2015), quoting 

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal 

denied, 105 A.3d 736 (Pa. 2014). We, therefore, find that appellant has 

raised a substantial question, and will consider his appeal on its merits.
J. S44011/16

- 9 -

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.” Commonwealth v. Devers, 519 

Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also 

Commonwealth v. Tirado, 870 A.2d 362, 368 

(Pa.Super. 2005) (stating if sentencing court has 

benefit of PSI, law expects court was aware of 

relevant information regarding defendant’s character 

and weighed those considerations along with any 

mitigating factors). Further, where a sentence is 

within the standard range of the guidelines, 

Pennsylvania law views the sentence as appropriate 

under the Sentencing Code. See Commonwealth 

v. Cruz-Centeno, 447 Pa.Super. 98, 668 A.2d 536 

(1995), appeal denied, 544 Pa. 653, 676 A.2d 

1195 (1996) (stating combination of PSI and 

standard range sentence, absent more, cannot be 

considered excessive or unreasonable).

Moury, 992 A.2d at 171.

Here, the trial court indicated on the record that it received and 

reviewed appellant’s PSI. (Notes of testimony, 8/18/15 at 2.) Because the 

trial court reviewed appellant’s PSI, it is presumed that the trial court was 

aware of appellant’s rehabilitative needs. The trial court then sentenced 

appellant, pursuant to the plea agreement, to a term of 18-60 months’ 

incarceration, which appellant acknowledges is within the standard range of 

the sentencing guidelines. We, therefore, find that the sentence imposed by 

the trial court is appropriate under the Sentencing Code, and appellant’s 

second issue is without merit.

Judgment of sentence affirmed. 
J. S44011/16

- 10 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/2016