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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES BROWN

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2908 EDA 2018

Appeal from the Judgment of Sentence Entered May 16

, 2018

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

No(s): CP

- 51

- CR

- 0004920

- 2017

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES BROWN

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3377 EDA 2018

Appeal from the Order Dated November 16, 2018

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

No(s): CP

- 51

- CR

- 0004920

- 2017

BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 7, 2020

In these two appeals, which we hereby consolidate, Appellant, Charles

Brown, appeals from his judgment of sentence (at 2908 EDA 2018), as well

as the order denying his motion for bail pending the disposition of his direct

appeal (at 3377 EDA 2018). In his appeal from his judgment of sentence ofJ

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- an aggregate term of 8 to 20 years’ incarceration, Appellant challenges the

trial court ’ s denial of his post

- sentence motion to withdraw his guilty plea. In

his appeal from the order denying him bail, Appellant contends that the court

abused its discretion because he does not pose a threat to society or a flight

risk, and he is likely to prevail in his appeal from his judgment of sentence.

After careful review, we affirm at both docket numbers.

The trial court summarized the facts of Ap pellant’s underlying

convictions, as follows:

Twenty

- three year old victim, “I.C.,” reported that she had

met and formed a brief relationship with Appellant, who had

falsely informed her that his name was Frank Lewis. On or about

May 5, 2016, a verbal argument ensued which quickly escalated

to an extreme form of physical violence. Appellant severely beat

the victim about the face and body with bags of sand and a metal

pole. Appellant held I.C. against her will and confined in

Appellant’ s small apartment in Philadelphia for approximately five

days.

During this five day period, Appellant repeatedly sodomized

and raped the victim and forced her to call her concerned family

members to falsely state that she had sex with her brothers.

Those family members contacted law enforcement who rescued

this victim from inside Appellant’s apartment and immediately

transported her to the hospital for emergency medical treatment

for multiple observable injuries to her arms, legs and face.

Appellant had fled the apartment.

The victim’ s significant injuries were photographed by

investigators and a sexual assault exam had been performed

. The

Rape Kit that had been collected, was analyzed and was positive

for male DNA. The Arrest Warrant had been obtained on June 17,

2016. Investigators continually searched for the Appellant until

his arrest date of January 5, 2017. Bail was originally set at

$500,000.00 after initial arraignment.

Trial Court Opinion (TCO), 6/21/19, at 3.J

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- On May 16, 2018, the court conducted a hearing to address certain

pretrial motions filed by the parties. During that proceeding, Appellant

indicated that he wished to accept a plea deal offered by the Commonwealth.

After “calm negotiations, private conferences, and extensive oral and written

colloquies,

... and after multiple intermissions had been provided to permit

Appellant to speak to his attorney and reflect upon [the] purpose and [his]

plea intentions, [the trial c]ourt accepted Appellant’s tendered negotiated

guilty pleas to recited offenses and imposed the [o]rder and [j]udgment of

[s]entences accordingly.” Id. at 5.

On May 24, 2018, Appellant filed a post

- sentence motion to withdraw

his guilty plea. After two separate hearings on the motion, the court denied

it on August 23, 2018. Appellant timely filed an appeal , which was docketed

at 2908 EDA 2018

. 1 He also timely complied with the trial court ’ s order to file

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

While his direct appeal was pending, Appellant filed a pro se request for

bail pending the di sposition of his direct appeal. On November 16, 2018, the

court conducted an evidentiary hearing on the motion

, and denied it that same

day. Appellant filed a timely appeal from that order, which was docketed at

3377 EDA 2018.

_________________ __________ ______ ____ _______

1 We note that Appellant’s notice of appeal incorrectly stated that he was

appealing from the court’s August 23, 2018 order denying his post

- sentence

motion. “In a criminal action, [the] appeal prope rly lies from the judgment of

sentence made final by the denial of post

- sentence motions.”

Commonwealth v. Shamberger , 788 A.2d 408, 410 n.2 (Pa. Super. 2001)

( en banc ). We have amended the caption accordingly.J

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- On June 21, 2019, the trial court authored an opinion addressing the

following two issues that Appellant raises in case s 2908 EDA 2018 an d 3377

EDA 2018, respectively:

[I.] Did the lower court err in denying Appellant ’ s post

- sentence

motion to withdraw his guilty plea, where due to a break down in

the attorney

- client relationship with plea[]co unsel, Appellant was

psychologically coerced into pleading guilty, and therefore[,] did

not voluntarily enter into the plea, resulting in manifest

injustice[?]

[II.]

... [W]hether the trial court erred in denying his motion to

set bail pending appeal as he believes he is likely to prevail on his

appeal on 2908 EDA 2018, poses no appreciable danger to the

community[,] and would be gainfully employed while on bail?

Appellant ’ s Brief in 2908 EDA 2018 (hereinafter “Appellant’s Brief I”) at 7;

Appellant ’ s Brief in 3377 EDA 2018 (hereinafter “Appellant’s Brief II”) at 7.

In Appellant ’ s first issue, he contends that his guilty p lea was

involuntary because it “ was entered into while emotions were raw, done in a

hasty manner and in the spur of the moment, and after having had what he

asserts was a heated argument between he [ sic ] and plea counsel.”

Appellant ’ s Brief I at 14. Appellant also contends that his attorney

- client

relationship with his counsel had completely broken down prior to his plea and

he was essentially coerced into entering it

.

Preliminarily,

[i] n Commonwealth v. Prendes

, 97 A.3d 337, 352 (Pa. Super.

2014)

, impliedly overruled on other grounds by Commonwealth

v. Hvizda

, 116 A.3d 1103, 1106 ( [Pa.] 2015), we explained that

a defendant may withdraw his guilty plea after sentencing “only

where necessary to correct manifest injustice.” Prendes

, 97 A.3d

at 352 (citation omitted). Thus, “post

- sentence motions for

withdrawal are subject to higher scrutiny since the courts striveJ

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- to discourage the entry of guilty pleas as sentence

- testing

devices.” Commonwealth v. Flick

, 802 A.2d 620, 623 (Pa.

Super. 2002).

“Manifest injustice occurs when the plea is not tendered

knowingly, intelligently, voluntarily, and understandingly.”

Commonwealth v. Kpou

, 153 A.3d 1020, 1023 (Pa. Super.

2016) ( citation omitted). In determining whether a plea is valid,

the court must examine the totality of circumstances surrounding

the plea. Id. “Pennsylvania law presumes a defendant who

entered a guilty plea was aware of what he was doing, and the

defendant bears the burden of proving otherwise.” Id.

Commonwealth v. Hart

, 174 A.3d 660, 664

– 65 ( Pa. Super. 2017)

.

Here, Appellant concedes that there was no defect in the court’s guilty

plea colloquy, “which was very extensive and thorough....” Appellant’s Brief I

at 15. He contends, however, that “the circumstances made its voluntariness

dubious; to wit, the attorney

- client exchange heard from the courtroom.” Id.

According to Appellant, he and counsel “had a very heated argument” just

prior to the plea proceeding. Id. at 14. While Appellant claims that “it was a

two way argument[,]” id.

, the trial court states that Appellant was “loudly

yelling and verbally mistreating his attorney in the private conferences held in

the cell room booth positioned next to the courtroom....” TCO at 4

- 5. As the

encounter between Appellant and his counsel occurred off the record, we

cannot evaluate or consider what took place. However, as the Commonwealth

points out, the record shows that after the exchange,

the court gave [Appellant ] time to “take a breath” and further

consult with counsel before proceeding. (N.T., 5/16/18[, at]

44)[.] After a break, [Appellant] proceeded through the guilty

plea colloquy calmly, methodically, and without emotionally

interrupting (as he had early in the proceedings). Nothing

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- decision. Moreover, on appeal, he cites no authority that suggests

a plea becomes involuntary or unknowing simply because the

defendant is emotional at the time of the plea.

Commonwealth’s Brief in 2908 EDA 2018 at 7

- 8. The record supports the

Commonwealth’s argument. We also note that nothing in the record indicates

that Appellant was rushed into his decision to plead guilty. Therefore, he has

failed to demonstrate that a manifest injustice will result by not per mitting

him to withdraw his plea. 2

In Appellant ’ s second issue

, he challenges the trial court ’ s denial of his

motion for bail pending the resolution of his direct appeal

. Pennsylvania Rule

of Criminal Procedure 523 states:

(A) To determine whether to release a defendant, and what

conditions, if any, to impose, the bail authority shall consider all

available information as that informati on is relevant to the

defendant’ s appearance or nonappearance at subsequent

proceedings, or compliance or noncompliance with the conditions

of the bail bond, including information about:

(1) the nature of the offense charged and any mitigating or

aggravating factors that may bear upon the likelihood of

conviction and possible penalty;

(2) the defendant’ s employment status and history, and

financial condition;

(3) the nature of the defendant’ s family relationships;

_________________ __________ ______ ____ _______

2 We also note that, to the extent Appellan t’s claims sound in plea counsel’s

ineffectiveness, such issues must be raised on co llateral review pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546. See

Commonwealth v. Holmes , 79 A.3d 562, 576 (Pa. 2013) (reaffirming the

prior holding in Commonwealth v. Grant , 813 A.2d 726 (Pa. 2002), that,

absent certain circumstances, claims of ineffective assistance of counsel

should be deferred until collateral review under the PCRA).J

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(4) the len gth and nature of the defendant’ s residence in

t he community, and any past residences;

(5) the defendant’ s age, character, reputation, mental

condition, and whether addicted to alcohol or drugs;

(6) if the defendant has previously been released on bail,

whether he or she appeared as required and complied with

the conditions of the bail bond;

(7) whether the defendant has any record of flight to avoid

arrest or prosecution, or of escape or attempted escape;

(8) the defendant’ s prior criminal record;

(9) any use of false identification; and

(10) any other factors relevant to whether the defendant

will appear as required and comply with the conditions of

the bail bond.

(B) The decision of a defendant not to admit culpability or not to

assist in an investigation shall not be a reason to impose additional

or more restrictive conditions of bail on the defendant.

Pa.Crim.P. 523.

Additionally, our Court has explained that, “[w] e will review the lower

court’ s order denying a bail application for an abuse of discretion and will only

reverse where the trial court misapplies the law, or its judgment is manifestly

unreasonable, or the evidence of record show that [its] decision is a result of

partiality, prejudice, bias, or ill will. ” Commonwealth v. Bishop

, 829 A.2d

1170, 1172 ( Pa. Super. 2003) (cleaned up).

Here, Appellant avers that the court should have granted his motion for

bail during the pendency of his direct appeal because that appeal “ has much

merit....” Appellant’s Brief II at 15. For the reasons set forth supra

, weJ

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- disagree. T hus, Appellant’s first argument as to why the court erred by not

granting him bail is meritless.

Appellant additionally contends that he should have been awarded bail

because his “record is not of such a nature that would render him a complete

menace to society. ” Id. He elaborates that he “ pled guilty to an Indecent

Assault (M2) in 2011. He has no other prior convictions.” Id. Appellant also

argues that the court weighed too heavily the facts of his present case, as he

now “asserts his innocence and therefore believes that these horrible facts

should not be held against him.” Id.

Again, Appellant’s argument is wholly unconvincing. Regardless of

Appellant’s prior record and his current assertion of innocence, he pled guilty

to two very serious offenses in the present case. In denying him bail, the trial

court focused on Appellant’s “particularly violent behavior, as well as evidence

of [his] long term avoidance of apprehension.” TCO at 12

- 13. The court

concluded that Appellant’s “flight risk and [the] danger to the community

...

justified denial of bail.” Id. at 13. Given the record before us, w e discern no

abuse of discretion in the court’s decision.

Accordingly, we affirm both Appellant’s judgment of sentence 2908 EDA

2018, and the order denying his request for bail in 3377 EDA 2018.

Judgment of sentence affirmed. Order affirmed.J

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- Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2020