J-S22043-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JODEN ROCCO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1429 WDA 2022

Appeal from the Judgment of Sentence Entered June 2, 2022

In the Court of Common Pleas of Allegheny County

Criminal Division at CP-02-CR-0010885-2018

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED: July 21, 2023

Joden Rocco (Appellant) appeals from the judgment of sentence 

imposed after he pled guilty to third-degree murder and possession of an 

instrument of crime.1 We affirm.

At the guilty plea colloquy, the Commonwealth presented the following 

summary of events underlying Appellant’s plea:

On August 18th, 2018, Dulane Cameron, Jr. [the Victim], a 24-

year-old black man, decided to go with his friends, Trei and Tyler 

Hendon, [] out for the night.

....

[After spending time at one bar, the men] left the bar, and 

... [t]he three began to walk and engaged with two females named 

Christine Gerstel and Michaela Dalessio. Christine Gerstel and 

Michaela Dalessio would have testified that their interaction on the 

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1 18 Pa.C.S.A. §§ 2502(c) and 907(b).
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sidewalk with [the Victim] and the Hendon brothers was friendly, 

nice and flirtatious.

The group continued to walk together, with Miss Gerstel and 

Miss Dalessio, down North Shore Drive. They can be seen walking 

together on surveillance footage from Southern Tier and the AT&T 

Sports building, where the group talks collectively for 

approximately five to ten minutes on the corner of North Shore 

Drive and Tony Dorsett Way. The group continued walking, 

crossing that intersection.

[That same evening, Appellant] began his night at a club[.] 

....

Facebook Messenger messages between [Appellant] and 

another individual, Mitch Beley, established a message exchange 

[in the hours preceding the murder. Appellant sent several text 

messages containing racial epithets and speaking approvingly of 

“stomping ‘N’words’.”] ... 

N.T., 2/24/22, at 11-16.

Following the message exchange, Appellant went to a second bar. At 

that bar, after the African-American bartender gave Appellant some water, 

Appellant said, “Thanks ‘N-word.’” Id. at 17. The bartender alerted bar 

security about the incident, and security attempted to escort Appellant from 

the bar. Id.

[One of the security guards,] John Gyure[ (Gyure),] would 

have testified that, in his presence, [Appellant] asked two Middle[-

]Eastern men for a cigarette; however, they didn’t have any. At 

that time, [] Gyure heard ... [Appellant] beg[i]n to chant USSA 

[sic] at the men, as well as Go back to your country, and We will 

fucking kill you.

Id. at 18-19 (internal quotation marks omitted).
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Gyure and another security guard tried to remove Appellant from the 

bar. Appellant initially refused to leave and was verbally menacing with staff. 

Id. at 20. Appellant eventually left the bar, but continued to verbally abuse

the security staff outside. Id. Tyler Corson, the bar’s manager, exited the 

bar and tried to deescalate the situation. Id. at 20-21. Appellant threatened 

Corson and hit him in the throat. Id. at 21. 

Appellant then walked toward the area where the Victim and his friends 

were talking with the two women.

Michaela Dalessio would have testified that a white man, 

[Appellant], came out of nowhere[.] ... [S]he perceived him to 

be aggressive and upset.

Christine Gerstel would have testified that she observed the 

same. A white male approached the group of them and said: “You 

two look too good to be talking to them,” indicating [Appellant]

and the Hendon brothers. [Gerstel] further would have testified 

that [Appellant] called her [] “‘N-word’ lover.”

Id. at 23.

Appellant grabbed Tyler Hendon’s hair, and a fight ensued between the 

Victim, the Hendon brothers, and Appellant. Id. at 23. Tyler Hendon 

ultimately released Appellant from a headlock, and Appellant walked away. 

Id. A few minutes later, Appellant turned around, approached the Victim and 

the Hendon brothers, and began to fight them. Id. at 25-26. 

[An eyewitness heard Appellant yell], “You want to pull a 

knife?” to [the Victim]. Several witnesses began to record the 

fight on their cell phones]. []

....
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Trei Hendon would have testified that he led his brother, 

Tyler, away.... In doing so, [the Victim] was alone with 

[Appellant].

With Trei and Tyler gone and [the Victim] by himself, 

[Appellant] pull[ed] a knife out of his back pocket. [Appellant]

proceed[ed] to close the distance between himself and [the 

Victim], as [the Victim put] his arms up and walk[ed] backwards. 

[Appellant] then stab[bed] [the Victim] in the neck, while [the 

Victim] simultaneously [struck Appellant] in the face.

Id. at 27-28.

The Victim died at the scene. Id. at 28-29. Appellant fled the scene. 

Id. at 29. The police arrested Appellant later that morning, after Appellant 

approached two police officers and asked for a ride. Id. at 30-31. 

On the morning of jury selection on February 24, 2022, Appellant 

entered an open guilty plea to the above crimes. Following receipt of a presentence investigation report (PSI), on June 2, 2022, the trial court sentenced 

Appellant to 14 – 40 years in prison, followed by 2 years of probation. 

On June 9, 2022, Appellant filed a timely post-sentence motion

challenging the discretionary aspects of his sentence. Appellant also sought 

a continuance to file a supplemental post-sentence motion. After two 

continuances, Appellant filed a timely supplemental post-sentence motion on 

August 25, 2022, seeking, for the first time, to withdraw his guilty plea. The 
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trial court denied the motions on October 24, 2022.

2

 This timely appeal 

followed.3 Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant raises the following issues:

I. Did the trial court err when it denied Appellant’s [m]otion to 

[w]ithdraw [guilty plea] because of a [violation of Brady v. 

Maryland, 373 U.S. 83 (1963)]?

II. Is there a substantial question as to the discretionary 

aspects of Appellant’s sentence due to the [t]rial [c]ourt’s 

sentence being manifestly unreasonable?

Appellant’s Brief at 4.

Appellant first claims the trial court erred in denying his post-sentence 

motion to withdraw his guilty plea, because the Commonwealth violated 

Brady. Appellant’s Brief at 12-13. Prior to entry of Appellant’s plea, the 

parties engaged in discovery. As part of discovery, the Commonwealth sent 

Appellant a copy of the Victim’s autopsy report. Appellant contends the report 

stated, “Gunshot residue [(GSR)] from both [of the Victim’s] hands was 

obtained at the beginning of the autopsy.” Appellant’s Supplemental Post-

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2 More than 120 days passed since the filing of the first post-sentence motion. 

See Pa.R.Crim.P. 720(B)(3)(a).

3 This Court has found a breakdown in the trial court when a post-sentence 

motion is not denied within 120 days and/or the clerk of the courts has not 

deemed the motion denied by operation of law and sent a copy of the order 

to the parties. See Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 

2003). When a trial court denies a post-sentence motion after the 120-day 

period and the appellant files a notice of appeal within 30 days of the denial, 

the appeal is deemed timely. See id.
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Sentence Motion, 8/25/22, at 2 (unnumbered); see id. at Exhibit C, Autopsy 

Report, at 14. 

Because of this statement, Appellant requested that the Commonwealth 

turn over the result of the GSR test. Id. at 3 (unnumbered). In response, 

the Commonwealth forwarded an email from George Moore, of the Allegheny 

County Medical Examiner’s Office, where Moore explained that the statement 

about finding GSR on the Victim’s hands was included in error and there was 

no “GSR kit done by me or our lab.” Id. at 3 (unnumbered); see id. at Exhibit 

D, E-Mails between Commonwealth and George Moore. Nonetheless, 

Appellant maintains: 

[S]ince a coroner is a bonded officer ... the reports issued by the 

Medical Examiner’s Office are presumed reliable and accurate. 

Therefore, it is [Appellant’s] position that a [GSR] kit was tested 

and the results have not been turned over to the Defense. 

Id. at 3 (unnumbered). 

“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.” 

Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017). The term 

discretion

imports the exercise of judgment, wisdom and skill so as to reach 

a dispassionate conclusion, and discretionary power can only exist 

within the framework of the law, and is not exercised for the 

purpose of giving effect to the will of the judges. Discretion must 

be exercised on the foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary action. Discretion is 

abused when the course pursued represents not merely an error 

of judgment, but where the judgment is manifestly unreasonable 
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or where the law is not applied or where the record shows that 

the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Kehr, 180 A.3d 754, 756-57 (Pa. Super. 2018) (citation 

omitted).

There are different standards for reviewing requests to withdraw a guilty 

plea before and after a sentence is imposed. Commonwealth v. Flick, 802 

A.2d 620, 623 (Pa. Super. 2002). Pre-sentence, the court administers its 

discretion 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, 1292 (Pa. 2015). In 

contrast,

post-sentence motions for withdrawal are subject to higher 

scrutiny 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 

omitted).

We presume when an appellant has entered a guilty plea, he was aware 

of what he was doing; it is his burden to prove the plea was involuntary. See 

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001). Where 
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the record demonstrates the trial court conducted a guilty plea colloquy and 

the appellant understood the nature of the charges against him, the plea is 

voluntary. See id.

A valid plea colloquy examines:

1) the nature of the charges, 2) the factual basis for the plea, 3) 

the right to a jury trial, 4) the presumption of innocence, 5) the 

sentencing ranges, and 6) the plea court’s power to deviate from 

any recommended sentence.

Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) (en 

banc) (citation omitted).

Regarding Brady claims, the Pennsylvania Supreme Court has 

explained:

To succeed on a Brady claim, the defendant must show: (1) 

evidence was suppressed by the prosecution; (2) the evidence, 

whether exculpatory or impeaching, was favorable to the 

defendant; and (3) prejudice resulted. A Brady violation exists 

only where the suppressed evidence is material to guilt or 

punishment, i.e., where there is a reasonable probability that, had 

the evidence been disclosed, the result of the proceeding would 

have been different. In determining whether a reasonable 

probability of a different outcome has been demonstrated, [t]he 

question is not whether the defendant would more likely than not 

have received a different verdict with the evidence, but whether 

in its absence he received a fair trial, understood as a trial 

resulting in a verdict worthy of confidence. A reasonable 

probability of a different result is shown when the government’s 

suppression of evidence undermines confidence in the outcome of 

the trial.

Commonwealth v. Cousar, 154 A.3d 287, 301 (Pa. 2017) (citations 

omitted).

Here, the trial court explained its rejection of Appellant’s Brady claim:
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[Appellant’s] allegation [regarding the GSR test] is without 

support in the record. Appellant has brought forth no evidence 

that the Medical Examiner is lying about the [GSR] testing. To 

the contrary, the Office of the District Attorney made reasonable 

inquiry regarding the alleged evidence and ascertained that no 

such evidence existed. Since Appellant has failed to establish that 

evidence exists, let alone that it was suppressed by the 

Commonwealth, his allegation of a Brady claim fails, and his first 

issue is without merit.

Trial Court Opinion, 2/9/23, at 3. The record supports the trial court’s 

rationale. 

We further observe that Appellant received the autopsy report in late 

2018 or early 2019. The Commonwealth notified Appellant on July 15, 2019, 

that the statement regarding the GSR test was a mistake. Appellant took no

further action. He entered his plea more than 21⁄2 years later, on February 

24, 2022. 

Appellant did not present any Brady claim at his plea colloquy. During 

the colloquy, Appellant confirmed he had not been threatened or coerced into 

pleading guilty and had discussed the issue with counsel. N.T., 2/24/22, at 

8. Appellant acknowledged he had answered all questions in the written plea 

colloquy honestly and understood the “full meaning” of the document. Id. at 

9. Appellant stated he was satisfied with his attorneys. Id. Appellant agreed 

that he understood that by pleading guilty he was foregoing a possible 

justification defense. See id. at 34 and 36. Again, he did not mention any 

alleged Brady violations which may have impacted his decision to plead guilty

or to forego a justification defense. See id. 
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Our review confirms that Appellant’s oral and written colloquies met the 

standards set forth in Morrison, supra. See N.T., 2/24/22, at 1-45; Guilty 

Plea Colloquy, 2/24/22, at 1-11; see also Morrison, 878 A.2d at 107. The 

record contains no support for Appellant’s claim that his guilty plea was not 

knowing, intelligent, or voluntary because of an alleged Brady violation. 

Finally, we note that Appellant did not seek withdrawal of his plea in the 

approximately four months between the guilty plea and sentencing. Appellant 

first raised this claim six months after his plea (and over two months after 

sentencing). At that point, Appellant had been aware of the alleged Brady 

violation for over three years. 

In sum, we discern no error by the trial court’s refusal to allow Appellant 

to withdraw his guilty plea. See Morrison, 878 A.2d at 107; McCauley, 797 

A.2d at 922; see also Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. 

Super. 1996) (en banc) (“The law does not require that appellant be pleased 

with the outcome of his decision to enter a plea of guilty: All that is required 

is that [appellant’s] decision to plead guilty be knowingly, voluntarily and 

intelligently made.” (citation omitted)). Appellant’s first issue does not merit 

relief.

In his second issue, Appellant challenges the discretionary aspects of 

his sentence.4 Appellant’s Brief at 15-20. There is no absolute right to 

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4 Appellant’s brief does not comply with Pa.R.A.P. 2111(a)(6) and (8), 2118, 

and 2119. Despite these defects, we decline to find waiver. 
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challenge the discretionary aspects of a sentence. See Commonwealth v. 

Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Before reaching the merits of a 

discretionary sentencing claim, we must determine:

(1) whether the appeal is timely; (2) whether Appellant preserved 

his issue; (3) whether Appellant’s brief includes a concise 

statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of sentence; and (4) whether 

the concise statement raises a substantial question that the 

sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329–30 (Pa. Super. 2013) 

(citation omitted).

Appellant preserved his sentencing issues in a post-sentence motion, 

filed a timely appeal, and included in his brief a statement of the reasons relied 

upon for allowance of appeal. Therefore, we consider whether Appellant has 

raised a substantial question.

Appellant contends the sentence was excessive, and the trial court: (1)

failed to properly consider mitigating factors; (2) only considered the 

seriousness of the offense; and (3) only contemplated the need for retribution. 

Appellant’s Brief at 19-20. These claims raise a substantial question. See 

Commonwealth v. Summers, 245 A.3d 686, 692 (Pa. Super. 2021) 

(concluding a claim that the sentence was harsh and excessive and trial court 

failed to consider mitigating factors raises a substantial question); 

Commonwealth v. Allen, 24 A.3d 1058, 1064-65 (Pa. Super. 2011) (“[A] 

claim that a sentence is excessive because the trial court relied on an 

impermissible factor raises a substantial question.” (citations omitted)); 
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Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009) 

(concluding claim that the trial court only considered the seriousness of the 

offense raises a substantial question).

We next consider the merits of Appellant’s claim mindful of the 

following:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation 

omitted).

When a sentence is within the standard range of the guidelines, 

Pennsylvania law views the sentence as appropriate under the Sentencing 

Code. See Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).

We may only vacate a sentence that is within the guidelines if the sentence is 

“clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2). In addition, when the trial 

court has had the benefit of a PSI, we “presume that the sentencing judge 

was aware of relevant information regarding the defendant’s character and 

weighed those considerations along with mitigating statutory factors.” 

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). 

Here, the trial court considered the PSI, its addendum, a sentencing 

memorandum from the defense, the sentencing guidelines, and testimony
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from witnesses on behalf of the Commonwealth and Appellant. N.T., 6/2/22, 

at 5, 7-63, 102. The trial court discussed the sentencing factors and 

Appellant’s rehabilitative needs. Id. at 105-08. However, the court also 

observed Appellant’s demeanor at sentencing, stating that he “walked in 

laughing and trying to talk to his family.” Id. at 108. The court stated, “I 

take rehabilitative needs seriously. I do consider them as [] I do all factors. 

... I’ve given a lot of thought to what is the right balance between rehabilitative 

needs and retribution.” Id. at 110. 

The court further explained:

In imposing its sentences on Appellant, [the trial c]ourt considered 

the sentencing factors listed in 42 Pa.C.S.A. § 9721(b) (the 

protection of the public, the gravity of the offense in relation to 

the impact on the victim and the community, and the 

rehabilitative needs of the defendant), in addition to the 

Sentencing Guidelines. [The trial c]ourt wrestled with competing 

factors in fashioning a sentence for Appellant. On one hand, 

[Appellant’s entering] a plea demonstrated an amount of taking 

responsibility for his actions and saved the Commonwealth the 

expense of a trial and the emotional trauma for the [V]ictim’s 

family that would inevitably ensue. [The c]ourt considered 

Appellant’s history of childhood trauma and the effect such trauma 

had on fueling the anger which fueled Appellant’s actions. 

Appellant’s history of alcohol abuse and intoxication at the time 

his crime was committed are additional factors [the trial c]ourt 

considered.

However, many people have suffered trauma without 

turning to violence. Few people who abuse alcohol become 

murderers. [The c]ourt must keep in mind the loss that was 

suffered. A young man was killed. Appellant, in what could be 

characterized as a racist, drunken rage, stole the future of [the 

Victim] and left his family and friends with unanswerable 

questions. [The c]ourt considered Appellant’s substantial need for 

rehabilitation, his risk to the community, the serious nature of the 

crimes and the impact of those crimes in imposing a sentence that 
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allows him to return to society at a reasonably young age if he 

can rehabilitate himself and the statutory maximum if he cannot. 

Since [the c]ourt appropriately considered both the aggravating 

and mitigating factors in fashioning its sentence, no error 

occurred, and this issue is without merit.

Trial Court Opinion, 2/9/23, at 5-6.

As we discern no abuse of discretion by the trial court, Appellant’s 

sentencing issue does not merit relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2023