J-S79042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

BERNARD FORD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 3692 EDA 2016

Appeal from the Judgment of Sentence November 14, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002505-2014, 

MC-51-CR-0044110-2013

BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 19, 2018

Appellant, Bernard Ford, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following his 

open guilty plea to third-degree murder and conspiracy.1 We affirm. 

In its opinion, the trial court fully and correctly sets forth the relevant 

facts and procedural history of this case. Therefore, we have no reason to 

restate them. For purposes of our disposition, we add that counsel filed a 

petition for leave to withdraw as counsel and Anders brief in this Court on 

July 25, 2017. On August 16, 2017, Appellant filed a pro se response. 

As a preliminary matter, counsel seeks to withdraw his representation 

____________________________________________

1 18 Pa.C.S.A. §§ 2502(c) and 903, respectively. 
J-S79042-17

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pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 

493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 

(2009). Anders and Santiago require counsel to: (1) petition the Court for 

leave to withdraw, certifying that after a thorough review of the record, 

counsel has concluded the issues to be raised are wholly frivolous; (2) file a 

brief referring to anything in the record that might arguably support the 

appeal; and (3) furnish a copy of the brief to the appellant and advise him of 

his right to obtain new counsel or file a pro se brief to raise any additional 

points the appellant deems worthy of review. Santiago, supra at 173-79, 

978 A.2d at 358-61. Substantial compliance with these requirements is 

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 

2007). After establishing that counsel has met the antecedent requirements 

to withdraw, this Court makes an independent review of the record to 

confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903 

A.2d 1244, 1246 (Pa.Super. 2006).

In Santiago, supra, our Supreme Court addressed the briefing 

requirements where court-appointed appellate counsel seeks to withdraw 

representation:

Neither Anders nor [Commonwealth v. McClendon, 495 

Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s 

brief provide an argument of any sort, let alone the type of 

argument that counsel develops in a merits brief. To 

repeat, what the brief must provide under Anders are 

references to anything in the record that might arguably

support the appeal.
J-S79042-17

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* * *

Under Anders, the right to counsel is vindicated by 

counsel’s examination and assessment of the record and 

counsel’s references to anything in the record that 

arguably supports the appeal. 

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed 

counsel’s petition to withdraw, counsel must: (1) provide a 

summary of the procedural history and facts, with citations 

to the record; (2) refer to anything in the record that 

counsel believes arguably supports the appeal; (3) set 

forth counsel’s conclusion that the appeal is frivolous; and 

(4) state counsel’s reasons for concluding that the appeal 

is frivolous. Counsel should articulate the relevant facts of 

record, controlling case law, and/or statutes on point that 

have led to the conclusion that the appeal is frivolous. 

Id. at 178-79, 978 A.2d at 361.

Instantly, Appellant’s counsel filed a petition to withdraw. The petition 

states counsel conducted a conscientious review of the record and 

determined the appeal is wholly frivolous. Counsel also supplied Appellant 

with a copy of the brief and a letter explaining Appellant’s right to retain new 

counsel or to proceed pro se to raise any additional issues Appellant deems 

worthy of this Court’s attention. (See Letter to Appellant, dated July 24,

2017, attached to Petition for Leave to Withdraw as Counsel). In the 

Anders brief, counsel provides a summary of the facts and procedural 

history of the case. Counsel’s argument refers to relevant law that might 

arguably support Appellant’s issue. Counsel further states the reasons for 

his conclusion that the appeal is wholly frivolous. Therefore, counsel has 
J-S79042-17

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substantially complied with the requirements of Anders and Santiago. 

Counsel raises the following issue on Appellant’s behalf: 

DID THE HONORABLE COURT COMMIT AN ABUSE OF 

DISCRETION BY REFUSING TO PERMIT APPELLANT TO 

WITHDRAW HIS GUILTY PLEA BECAUSE THE PLEA WAS 

ENTERED UKNOWINGLY AND INVOLUNTARILY DUE TO THE 

FACT THAT APPELLANT WAS SUFFERING FROM MENTAL 

ILLNESS AT THE TIME HE ENTERED HIS PLEA AND HAD 

NOT TAKEN NECESSARY MEDICATION THE NIGHT BEFORE 

HE ENTERED HIS GUILTY PLEA? 

(Anders Brief at 14)2. 

This Court reviews “a trial court’s ruling on a pre-sentence motion to 

withdraw a guilty plea for an abuse of discretion.” Commonwealth v. 

Islas, 156 A.3d 1185, 1187 (Pa.Super. 2017). “An abuse of discretion is 

not a mere error in judgment but, rather, involves bias, ill will, partiality, 

manifest unreasonableness, and/or misapplication of law.” Commonwealth 

v. Gordy, 73 A.3d 620, 624 (Pa.Super. 2013), appeal denied, 624 Pa. 687, 

87 A.3d 818 (2014). “By contrast, a proper exercise of discretion conforms 

to the law and is based on the facts of record.” Id. 

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

applicable law, and the well-reasoned opinion of the Honorable Genece E. 

Brinkley, we conclude Appellant’s issue on appeal merits no relief. The trial 

court opinion comprehensively discusses and properly disposes of the 

____________________________________________

2 Appellant also raised this claim in his pro se response to counsel’s petition 

for leave to withdraw as counsel. 
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question presented. (See Trial Court Opinion, filed June 5, 2017, at 9-21) 

(finding: to extent Appellant asserts plea counsel was ineffective because he 

“forced” Appellant to enter guilty plea, this claim is premature and must wait 

until collateral review; additionally, Appellant failed to demonstrate that 

allowing withdrawal of his guilty plea would promote fairness and justice; 

record belies Appellant’s claim that he did not understand consequences or 

terms of his guilty plea, due to his mental health issues; at November 3, 

2015 plea hearing, Appellant reviewed and signed written guilty plea 

colloquy with counsel; court then conducted thorough oral colloquy with 

Appellant in which it discussed nature of charges, factual basis of plea, 

permissible sentencing ranges, right to jury trial, Appellant’s presumption of 

innocence, Appellant’s level of education, and Appellant’s mental health 

issues; nothing in record indicates Appellant was confused or disoriented; in 

fact, Appellant answered court’s questions during oral colloquy in lucid and 

coherent manner; Appellant is bound by statements made at guilty plea

hearing; with respect to Appellant’s assertion that he was not informed of 

his obligation to testify for Commonwealth, trial counsel stated he explained 

every component of plea agreement to Appellant, including Appellant’s 

obligation to testify for Commonwealth at trial of Appellant’s co-defendants;

significantly, Appellant’s actions after execution of plea agreement 

demonstrate Appellant’s awareness of requirement to testify for 

Commonwealth; further, Commonwealth would suffer substantial prejudice if 
J-S79042-17

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court allowed Appellant to withdraw guilty plea; through Appellant’s 

involvement in co-defendants’ case, Appellant was aware of 

Commonwealth’s evidence and trial strategy; as such, allowing Appellant to 

withdraw plea would substantially impair Commonwealth’s ability to 

prosecute Appellant; under these circumstances, court properly denied 

Appellant’s motion to withdraw his guilty plea). Following our independent 

review of the record, we conclude the appeal is frivolous. See Palm, supra. 

Accordingly, we affirm on the basis of the trial court opinion and grant 

counsel’s petition to withdraw. 

Judgment of sentence affirmed; petition to withdraw is granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2018

 
. ' Circulated 12/2tf,[j[j2:21 PM 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CRIMINAL TRIAL DIVISION 

JUNO 5 2017 

Qfflce of Judicial Records 

Appeals/Post Trial 

_C_QMMnNWEALTH. . . .. 

vs. 

BERNARD FORD 

BRINKLEY, J. 

CP-51-CR-0002505-2014 Comm v Ford, Bemard 

Op1mon 

II I I Ill 1111111111111111 

7956374211 

OPINION 

SUPERIOR COURT 

3692 EDA 2016 

JUNE 5, 2017 

Defendant Bernard Ford appeared before this Court and pied guilty to Third Degree 

Murder and Criminal Conspiracy. Prior to pleading guilty, Defendant entered into a 

Memorandum of Agreement with the Commonwealth, wherein Defendant agreed to testify as a 

Commonwealth witness against his co-conspirators. However, at his co-conspirators' trial, 

Defendant denied any knowledge of the crime. Subsequently, Defendant, through counsel, made 

an oral motion to withdraw his guilty plea. This Court denied the motion. A jury found 

Defendant's co-conspirators not guilty. This Court sentenced him to an aggregate sentence of 25- 

50 years state incarceration, with credit for time served. Defendant filed a Notice of Appeal to 

the Pennsylvania Superior Court and raised the following issue on appeal: whether the trial court 

abused its discretion when it denied Defendant's motion to withdraw his guilty plea. This 

Court's judgment of sentence, and denial of Defendant's motion to withdraw his guilty plea, 

should be affirmed. 
FACTS AND PROCEDURAL HISTORY 

On July 14, 2013, at approximately 11: 18 a.m., Philadelphia Police Officers responded to 

a radio call reporting gunshots at 2048 Bellmore Street. Upon arrival, police officers discovered 

victim Alfred McCrory ("McCrory," a.k.a. "Doo-Doo") lying in the street with multiple gunshot 

wounds to his head and torso. McCrory was transported to Temple University Hospital where he 

was pronounced dead at 11 :55 a.m. On July 15, 2013, the assistant medical examiner determined 

the cause of death to be gunshot wounds and ruled McCrory's death a homicide. 

After a four-month long investigation, which included interviewing several eyewitnesses 

to the murder as well as discovering incriminating texts on McCrory's cellular phone, homicide 

detectives obtained arrest warrants for Defendant and two other men: Terrence Johnson 

(''Johnson"), and Spencer Hutchins ("Hutchins"). On November 14, 2013, Defendant was 

arrested at his apartment and charged with murder and conspiracy. On the day of his arrest, 

Defendant gave a statement to police, in which he described being present at the scene of the 

murder. He identified the men involved in the shooting, and stated that they all knew each other 

because they sold drugs together on that block. He stated that McCrory "ran" the block and 

collected "rent" from Defendant and his friends for permission to sell crack there, but then later 

McCrory began bringing in new people to the block to sell drugs and did not charge them rent. 

Defendant stated that he had known McCrory since childhood. The next day, Johnson and 

Hutchins were arrested and also charged with murder and conspiracy. 

On November 2, 2015, Defendant, with his defense counsel David Desiderio, Esquire, 

entered into an agreement to cooperate with the Commonwealth. Defendant agreed to plead 

guilty to Third Degree Murder and Criminal Conspiracy. He further agreed to testify as a 

Commonwealth witness against Hutchins and Johnson at their joint jury trial. In exchange, the 

2 
Commonwealth agreed to make a sentencing recommendation commensurate with Defendant's 

conduct and level of cooperation. 

On November 3, 2015, Defendant appeared before this Court and pied guilty to murder 

and criminal conspiracy. At the guilty plea hearing, this Court conducted a thorough on-therecord colloquy to ensure that Defendant's guilty plea was knowing and voluntary. Defendant 

disclosed his mental health issues, explaining that he had been diagnosed with Attention Deficit 

Hyperactivity Disorder (ADHD), schizophrenia and depression, and that he took medication 

daily, although he did not take it on the night before his plea because he left the prison before it 

was distributed. Defendant stated that he understood why he was in court and understood that he 

was pleading guilty. He denied that any of his mental health conditions would prevent him from 

knowingly and voluntarily pleading guilty. This Court accepted Defendant's guilty plea and 

deferred sentencing to allow for the preparation of a presentence investigation (PSI) report and a 

mental health evaluation. 

On November 6, 2016, Defendant traveled to the District Attorney's Office for witness 

preparation. His attorney, Mr. Desiderio, was unable to accompany him due to an ongoing family 

emergency; however, Defendant was able to speak to Mr. Desiderio via telephone during the 

prep session when he had questions or concerns. 

Nine days after his guilty plea, on November 12, 2015, Defendant appeared before this 

Court as a Commonwealth witness in the matter of two of his co-conspirators, Hutchins and 

Johnson, who were tried together before a jury. Instead of testifying consistent with his prior 

statements regarding the murder, Defendant denied even knowing the decedent, denied any 

knowledge of the murder, and denied making an agreement with the Commonwealth. He further 

3 
stated that his attorney, Mr. Desiderio, had forced him to plead guilty and that he was not on his 

medication at the time of his guilty plea before this Court. (N.T. 11/12/15, p. 7-55). 

The Court was adjourned until November 16, 2015. On that day, Defendant appeared 

before this Court with new counsel, Perry DeMarco, Jr., Esquire. Defense counsel argued an oral 

motion to withdraw Defendant's guilty plea. He argued that Defendant was ''forced" into an 

agreement with the Commonwealth, that Defendant was poorly advised by Mr. Desiderio, and 

that Defendant did not understand the Memorandum of Agreement. (N.T. 11/16/15, p. 5-6). 

Defendant testified he had learning disabilities, specifically ADHD, schizophrenia and bipolar 

disorder, and that he took the drugs Ritalin, Zyprexa, and Benadryl to treat these issues. 

Defendant stated that he signed the Memorandum of Agreement with the Commonwealth 

without ever reading the document or having it explained to him by Mr. Desiderio. He testified 

that when he signed the agreement, he did not understand that he was cooperating with the 

Commonwealth and did not know that he would be called as a witness. He further stated that he 

did not take his medications on the day he signed the agreement because they had not been 

distributed yet at the prison when he left for the District Attorney's (DA) Office. Defendant 

testified that Mr. Desiderio was not present when he visited the DA's Office again to prepare to 

testify at trial. He further testified that he did not take his medication on the day he appeared 

before this Court to plead guilty. He stated that at his guilty plea hearing, he did not understand 

his colloquy and did not understand any of the judge's questions. Defendant further testified that 

he had not taken his medication on the day he was arrested and gave a statement to police, 

wherein he described being present at the scene of the crime. Id. at 7-21. The defense rested on 

its motion at the conclusion of Defendant's testimony. 

4 
Assistant District Attorney Brian Zarallo, Esquire, testified first for the Commonwealth. 

He testified that he and ADA Whitehead met with Defendant and Mr. Desiderio at the District 

Attorney's Office to discuss the Memorandum of Agreement. ADA Whitehead had a family 

emergency, so ADA Zarallo stepped in to review the agreement with Defendant and Mr. 

Desiderio. Zarallo testified that he left Defendant and Mr. Desiderio alone for approximately 35- 

40 minutes so they could review the agreement. When he returned, Mr. Desiderio noted some 

minor changes that needed to be made to the document, which were quickly corrected. Zarallo 

testified that he recalled Defendant's demeanor that day as being "like an individual who didn't 

necessarily want to cooperate but given the manner of the case, his understanding of the amount 

of evidence against him, he came off to me like somebody that had wrapped his head around this 

as really my best and only way to avoid what will be an eventual life sentence." Id. at 101. 

Zarallo testified that at no point did Defendant appear to be confused or disoriented. Id. at 90- 

102. 

Assistant District Attorney Allison Ruth testified next. She testified that she stood in for 

ADA Whitehead at Defendant's guilty plea hearing because ADA Whitehead had been called 

away on a family emergency. She testified that on the day of the plea, she signed Defendant's 

written guilty plea colloquy immediately after Defendant and Mr. Desiderio signed it. She stated 

that they all signed the colloquy prior to the guilty plea hearing before this Court. Ruth testified 

that this Court conducted an oral on-the-record colloquy with Defendant and that in her opinion, 

Defendant appeared to understand the nature of the proceedings and knew what he was doing. 

She stated that Defendant was "completely engaged" in the proceeding and even asked a 

question regarding the domestic relations consequences of his plea that led him him to confer 

5 
with his attorney off the record for a moment. Ruth testified that at no time did Defendant say he 

did not want to plead guilty or that he was innocent of the charges against him. Id. at 116-124. 

David Desiderio, Esquire testified next for the Commonwealth. He testified that as 

=��= ��---�-�- �---�-=···---- ---··-··- -··-- ·-··· .. :··- .. · .• ---·-·.:.·-····--·· -- ·-·.·=-· ==··-�·.. ·--··-�-·- ···-· ·. ··--·· 

Defendant's counsel, he had been in contact with him several times via phone or in person at the 

prison. He testified that he spent at least 4 Y:i hours with Defendant at the District Attorney's 

Office on November 2, 2015, working through the Memorandum of Agreement. He discussed 

with Defendant the incriminating evidence against him, including the eyewitness accounts, the 

text messages recovered from the decedent's cell phone, and the statement Defendant gave 

police after his arrest that placed him at the scene of the murder. He then provided Defendant 

with his professional opinion regarding the probability of a guilty verdict. Desiderio testified 

that when he asked Defendant how he wished to proceed, Defendant replied, "Whatever is best 

for me." Desiderio stated that he believed Defendant's best chance was to offer himself as a 

Commonwealth witness, plead guilty to third-degree murder, and testify for the Commonwealth. 

He testified that he explained this to Defendant many times. He further stated that he reviewed 

with Defendant in great detail the proffer letter, and later the Memorandum of Agreement. 

Desiderio testified that he read each paragraph out loud with Defendant and explained to him 

what each item meant "in common parlance," offering additional explanation if necessary. 

Desiderio testified that when the Commonwealth came in the room with a map of the crime 

scene, Defendant, without any coaxing, pointed out where Hutchins was standing, identified the 

direction from which McCrory had been walking prior to being gunned down, and explained the 

location of the fire cartridge casings. Id. at 129-137. 

Desiderio stated that "beyond a shadow of a doubt, [Defendant] knew why he was there. 

If he didn't understand why he was there, he wouldn't have been there." He further stated that 

6 
Defendant "was very much in tune with what was happening in that office at that time," and at 

no time appeared incoherent. Desiderio emphatically denied that he forced Defendant to plead 

guilty, stating, "Sir, I would not know how to force somebody into a plea who is standing before 

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a judge. I don't know what that means. The answer, the short answer to that is absolutely not." 

Id. at 155. 

Desiderio testified that on November 6, 2015, Defendant went alone to the District 

Attorney's Office to prepare to testify. Desiderio was unable to accompany him on that date, but 

the Commonwealth attorney put Defendant on the phone with Desiderio when he appeared to 

have misgivings regarding his cooperation. Desiderio stated that he reviewed everything with 

Defendant again and explained the agreement once more. Desiderio testified that Defendant's 

misgivings were based upon pressure from family and neighborhood friends, and that Defendant 

was feeling nervous about testifying against close friends. Desiderio stated that at no time during 

the guilty plea hearing did he feel as though Defendant was not satisfied with his representation 

or that Defendant did not understand the nature of the proceedings. Id. at 13 7-164. 

After hearing argument from both counsel and reviewing the transcript from the guilty 

plea colloquy on the record, this Court denied Defendant's motion to withdraw his plea, finding 

that he knowingly, intelligently and voluntarily pled guilty, that he was satisfied with his 

lawyer's representation at the time of his plea, and that Defendant actively participated in 

preparing and placing himself on the crime scene map used at Hutchins, and Johnson's trial. Id. 

at 172-179. 

On November 17, 2015, Hutchins, and Johnson's trial resumed. Subsequently, the jury 

found Hutchins and Johnson not guilty on all charges. 

7 
On May 3, 2016, newly appointed defense counsel Jason Kadish, Esquire, filed another 

Petition to Withdraw Guilty Plea. This Court denied the petition at Defendant's sentencing on 

November 14, 2016. This Court stated on the record: 

And I'm going to put in the record that I've extensively reviewed 

any mental health issues with the defendant on the record at the 

time I took the guilty plea on November 3, 2015, and that review 

of that circumstance is clearly spelled out in the colloquy that I had 

with the defendant. And therefore, there is absolutely no reason for 

me to do anything any different than what I did before, and I stand 

by my decision to deny the withdrawal of the guilty plea. 

(N.T. 11/14/16, p. 7·8). 

On November 14, 2016, Defendant appeared before this Court for sentencing. Defense 

counsel recommended a sentence of 15 to 20 years state incarceration. The Commonwealth 

recommended a sentence of 30 to 60 years state incarceration. This Court sentenced Defendant 

to 20 to 40 years state incarceration on the charge of Third-degree Murder, plus 5 to 10 years 

state incarceration on the charge of Criminal Conspiracy, for an aggregate term of25 to 50 years 

state incarceration. Defendant was ordered to receive dual diagnosis treatment, undergo random 

urinalysis, obtain his GED and enroll in a job training program while imprisoned. This Court 

further ordered Defendant to seek and maintain employment upon release and pay all mandatory 

court costs. Id. at 29. 

On December 5, 2016, Defendant filed a Notice of Appeal to Superior Court. After 

resolving issues regarding court-appointment of defense counsel and obtaining all notes of 

testimony, this Court ordered Defendant to file a Concise Statement of Errors Complained of on 

Appeal Pursuant to P.A. R.A.P. 1925(b). Newly appointed appellate counsel John Belli, Esquire 

did so on March 27, 2017. Mr. Belli indicated that he intended to file an Anders Brief and that 

Defendant intended to raise the following issue on appeal: "The Honorable Court committed an 

8 
abuse of discretion by refusing to permit Appellant to withdraw his guilty plea because the plea 

was entered unknowingly, unintelligently, and involuntarily due to ineffective assistance of 

counsel and the fact that appellant was suffering from mental illness at the time he entered his 

+ .... -- .. -----··-·---·-·-------------------- ----- ·----·-----· •• 

plea and had not taken necessary medication the night before he [entered] his guilty plea." 

ISSUE 

I. WHETHER THIS COURT ABUSED ITS DISCRETION BY 

DENYING DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA. 

DISCUSSION 

I. THIS COURT PROPERLY DENIED DEFENDANT'S MOTION TO 

WITHDRAW GUILTY PLEA BECAUSE THE TRANSCRIPT FROM 

DEFENDANT'S GUILTY PLEA COLLOQUY, AS WELL AS 

TESTIMONY FROM DEFENSE COUNSEL AND THE 

COMMONWEAL TH REGARDING THE MEMORANDUM OF 

AGREEMENT, DEMONSTRATED THAT DEFENDANT KNOWINGLY, 

INTELLIGENTLY, AND VOLUNTARILY PLED GUILTY TO TIDRD 

DEGREE MURDER. 

This Court properly denied Defendant's motion to withdraw guilty plea because the 

record demonstrated that Defendant knowingly, intelligently, and voluntarily decided to plead 

guilty after entering into a Memorandum of Agreement with the Commonwealth. Defendant 

claims that his guilty plea was not voluntary due to ineffective assistance of counsel and because 

Defendant suffered from mental illness, had not taken his medication on the days when he signed 

the Memorandum of Agreement, met with the Commonwealth to prepare for trial, and appeared 

in Court to plead guilty. This claim is without merit. 

As a threshold matter, Defendant's claim of ineffective assistance of counsel is 

premature, as this claim is not cognizable on direct appeal. In Commonwealth v. Holmes, the 

9 
Pennsylvania Supreme Court reaffirmed the Grant

1 rule, holding that "claims of ineffective 

assistance of counsel are to be deferred to PCRA review; trial courts should not entertain claims 

of ineffectiveness upon post-verdict motions; and such claims should not be reviewed upon 

direct appeal." 79 A.3d 562 (Pa.2013). The Court carved out two narrow exceptions: 

( 1) "extraordinary circumstances where the trial court, in the exercise of its discretion, 

determines that a claim (or claims) of ineffective assistance is both meritorious and apparent 

from the record so that immediate consideration and relief is warranted;" and (2) where, upon 

good cause shown and where the defendant expressly waives his right to seek PCRA review, 

"the defendant seeks to litigate multiple or prolix claims of counsel ineffectiveness, including 

non-record-based claims, on post-verdict motions and direct appeal." Id. at 563-64, 577-78. 

Neither of these narrow, extraordinary exceptions are present in the case at bar. Therefore, 

Defendant's ineffective assistance of counsel claim should be deemed premature as it is not 

cognizable on direct appeal. 

Even if not premature, no relief is due. Defendant's claim that his mental health issues 

prevented him from knowingly, intelligently and voluntarily pleading guilty is entirely without 

merit. Under Pennsylvania law, "at any time before the imposition of sentence, the court may, in 

its discretion, permit, upon motion of the defendant, or direct, sua sponte, the withdrawal of a 

plea of guilty or nolo contendere and the substitution of a plea of not guilty." Pa. R. Crim. P. 

Eq t (A.). There is no absolute right to withdraw a guilty plea; rather, the trial court has discretion 

in determining whether the defendant's request should be granted. Commonwealth v. 

Carrasguillo, 115 A.3d 1284 at 1291·92 (Pa. 2015) (citing Commonwealth v. Forbes, 450 Pa. 

185, 190, 299 A.2d 268, 271 (1973)). A trial court's decision whether to permit a guilty plea to 

be withdrawn should not be disturbed absent an abuse of that discretion. Commonwealth v. 

I Commonwealth v. Grant 572 Pa. 48, 813 A.2d 726 (2002). 

10 
Prysock, 972 A.2d 539, 541 (Pa. Super. 2009). "An abuse of discretion exists when a defendant 

shows any 'fair and just' reasons for withdrawing his plea absent 'substantial prejudice' to the 

Commonwealth." Commonwealth v. Elia, 83 a.3d 254, 261 (Pa. Super. 2013) (quoting 

------------------= ����==�����= 

Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa. Super. 2011)). 

The Pennsylvania Supreme court in Carrasquillo outlined the standard a trial court should 

use when exercising its discretion regarding a motion to withdraw a guilty plea: "More broadly, 

the proper inquiry on consideration of such a withdrawal motion is whether the accused has 

made some colorable demonstration, under the circumstances, such that permitting withdrawal of 

the plea would promote fairness and justice. The policy of liberality remains extant but has its 

limits, consistent with the affordance of a degree of discretion to the common pleas court." 

Carrasguillo, 115 A.3d at 1292. "A sincere and plausible assertion of innocence has been held to 

satisfy the 'fair and just reason' standard" for granting a pre-sentence motion to withdraw a 

guilty plea. Id. 

The trial court must also examine whether the prosecution would suffer "substantial 

prejudice" should the court grant the defendant's request to withdraw his guilty plea. It is well 

settled that substantial prejudice to the Commonwealth, in the context of withdrawing a guilty 

plea, requires a "showing that, due to events occurring after the plea was entered, the 

Commonwealth is placed in a worse position than it would have been had trial taken place as 

scheduled." Commonwealth v. Blango, 150 A.3d 45, 51 (Pa.Super.2016) (citing Commonwealth 

v. Kirsch, 930 A.2d 1282, 1286 (Pa.Super.2007)). Substantial prejudice exists where a defendant 

"obtains a full preview of the Commonwealth's evidence before deciding upon [his] trial 

strategy." Blango, 150 A.3d at 51 (quoting Commonwealth v. Prendes, 97 A.3d 337, 353 (Pa. 

Super. 2014). 

11 
In addition, the law "presumes that a defendant who enters a guilty plea was aware of 

what he was doing. He bears the burden of proving otherwise." Commonwealth v. Reid, 117 

A.3d 777, 783 (2015)(quoting Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super.2003)). 

The Pennsylvania Superior Court explained: 

(O]nce a defendant has entered a plea of guilty it is presumed that 

he was aware of what he was doing, and the burden of proving 

involuntariness is upon him. Therefore, where the record clearly 

demonstrates that a guilty plea colloquy was conducted, during 

which it became evidence that defendant understood the nature of 

the charges against him, the voluntariness of the plea is 

established. A defendant is bound by the statements he makes 

during his plea colloquy, and may not assert grounds for 

withdrawing the plea that contradict statements made when he 

pied. 

Commonwealth y. McCauley, 797 A.2d�l0 (Pa.Super. 2001) (quoting Commonwealth v. Stork, 

737 A.2d 789, 790-91 (Pa.Super.1999), appeal denied 564 Pa. 709, 764 A.2d 1068 (2000)) 

( emphasis added). A "written plea colloquy that is read, completed and signed by the defendant 

and made part of the record may serve as the defendant's plea colloquy when supplemented by 

an oral, on-the-record examination." Reid, 117 A.3d at 782 (citing Commonwealth v. Morrison, 

878 A.2d 102, 108 (Pa.Super.2005); Pa.R.Crim.P. 590, Comment. "[A] plea of guilty will not be 

deemed invalid if the circumstances surrounding the entry of the plea disclose that the defendant 

had a full understanding of the nature and consequences of his plea and that he knowingly and 

voluntarily decided to enter the plea." Reid, supra (quoting Commonwealth v. Fluharty, 429 

Pa.Super.213, 632 A.2d 312, 315 (1993)). "Determining whether a defendant understood the 

connotations of his plea and its consequences requires an examination of the totality of the 

circumstances surrounding the plea. McCauley, supra (citing Commonwealth v. Yeager, 454 

Pa.Super.428, 685 A.2d 1000, 1004 ( 1996), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997)). 

12 
In order to determine "the voluntariness of the plea and whether the defendant acted knowingly 

and intelligently, the trial court must, at a minimum, inquire into the following six areas: 

(I) Does the defendant understand the nature of the charges to which he is pleading 

- ·�-· . " . __ ,,, __ --·-- ,_ ... , :;...--=--.--=::.:...:.=.: ··--·. ---····· ---- 

guilty? 

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

(3) Does the defendant understand that he has a right to trial by jury? 

(4) Does the defendant understand that he is presumed innocent until he is found guilty? 

(5) Is the defendant aware of the permissible ranges 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?" 

McCauley, supra, (citing Commonwealth v. Young, 695 A.2d 414, 417 (Pa.Super.1997)). The 

law "does not require that [the defendant] be pleased with the outcome of his decision to enter a 

plea of guilty: All that is required is that [his] decision to plead guilty be knowingly, voluntarily 

and intelligently made." Reid, supra (quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192 

(Pa.Super.2010)). 

In Stork, the court found the defendant failed to meet his burden where the defendant 

participated in a complete and thorough written colloquy which was followed by a lengthy oral 

colloquy, and where the defendant was specifically asked whether he was satisfied with counsel 

and whether his plea was entered into voluntarily and defendant answered in the affirmative. In 

Commonwealth v. Kasecky, the court held that the defendant was not entitled to relief where he 

did not inform the court he was taking medication during his oral on-the-record guilty plea 

colloquy and later failed to proffer any expert testimony that the medication he was taking 

13 
rendered him incapable of entering a knowing and intelligent plea. 442 Pa.Super. 139, 143 

(1995). The court noted in a footnote that the in written guilty plea colloquy, the defendant in 

Kasecky "acknowledged being on medication; that he, nonetheless, was able to understand the 

questions and answer them correctly; and that he both fully understood the questions and his 

decision to plead guilty." Id. at 143 n.2. Last, in Reid, the court found the defendant voluntarily 

and intelligently entered into his guilty plea where defendant confirmed he understood the terms 

of the agreement, the trial court conducted a lengthy guilty plea colloquy in which the defendant 

fully participated, the trial court explained defendant's right to trial by jury, his post-guilty plea 

appellate rights and defendant indicated he understood, and the Commonwealth provided a 

lengthy factual bases for each charge after which defendant admitted he was guilty. 117 A.3d at 

783. 

In the case at bar, Defendant has failed to demonstrate that permitting him to withdraw 

his guilty plea would promote fairness and justice. Defendant has made no claim that he is 

actually innocent of the crimes charged. Instead, he claims that his lawyer was ineffective for 

failing to explain to him the significance and consequences of the Memorandum of Agreement 

and associated guilty plea. He further claims that he was not taking his mental health medications 

on the days he signed the Memorandum of Agreement, met with the Commonwealth to prepare 

to testify at his co-conspirators' trial, and appeared before this Court to plead guilty, and 

therefore was not lucid and had no idea what he was doing. These claims are entirely without 

merit as they are not supported by the totality of the circumstances surrounding his plea. 

Defendant claims that trial counsel Mr. Desiderio never explained the guilty plea or the 

Memorandum of Agreement to him. He claims that he did not understand that he was pleading 

guilty or to what he was pleading guilty. This claim is belied by the record. At the guilty plea 

14 
hearing on November 3, 2015, Defendant reviewed the written guilty plea colloquy with his 

attorney and signed it. This Court then conducted an extremely thorough on-the-record colloquy, 

addressing areas outlined above. This Court asked Defendant several questions regarding the 

nature of the charges, the factual basis for the plea, the permissible sentencing ranges, the right to 

a trial by jury, and explained that defendant is presumed innocent until found guilty. This Court 

further inquired as to Defendant, s level of education and ability to read and write the English 

language. In addition, this Court extensively questioned Defendant regarding his mental health: 

THE COURT: Have you ever been a patient in a mental institution or been treated 

for mental illness? 

DEFENDANT: Yes. 

THE COURT: And when was that? 

DEFENDANT: I don't know. 

THE COURT: You don't know? 

DEFENDANT: I wasn't in a mental hospital but I got mental health problems. 

THE COURT: Okay. What is the nature of your mental health problems? 

DEFENDANT: My mom said - my mom know better. 

MR. DESIDERIO: I was informed, by - 

THE COURT: Okay. Just one minute. The trial sheet-the trial list says ADHD, 

schizophrenia, and depression with special considerations. So you 

reported this to someone else already, right? 

DEFENDANT: Yes. 

THE COURT: This is on your sheet. 

DEFENDANT: Yes. 

THE COURT: This is on your sheet. Everybody has it. 

DEFENDANT: Yes. 

15 
THE COURT: 

DEFENDANT: 

So what's written on the sheet says other - special considerations, 

other, ADHD, schizophrenia, and depression. 

Yes. 

,a - -,c.=,=- _,c.c�--�=- THE.COURT·,=·"� Can you tell me, is it all three of these.or.e., _ ----------- -- -- .--- - -- . _ 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDNAT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

All three. 

And when did you-when were you first diagnosed with these 

conditions. 

I'm not sure. 

You're not sure. How old - you're 25 now. So how many years 

have you had these conditions? 

Since I was 11. 

Since you were 11. Are you taking medication? 

Yes. 

What medication are you taking? 

Zyprexin and Benadryl. 

How often do you take it? 

Every night. 

Okay. So you took it last night? 

No, I was down in Homicide. 

Okay. So when's the last time you took your medication? 

The day before. 

The night before? 

Yeah. 

And when you take your medication, what does it do for you? 

Mellow, calm. 

16 
THE COURT: 

DEFNEDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

Okay. Do you understand why you're here today? 

Yes. 

Why are you here today? 

Enter a guilty plea. 

And to what charge? 

Third degree. 

All right, sir. And so, basically what you're saying is that right 

now you understand what you're doing? 

Yes. 

And you've had a conversation with your lawyer about it? 

Yes. 

And with your mental health issues you are - you still 

understand and your medications are working for you? 

Yes. 

So right now you understand everything that's been said and 

done so far today? 

Yes. 

And right now there are no mental health conditions that 

would prevent you from continuing with this plea? 

No. 

Okay. And are you satisfied with the representation of your 

lawyer up to this point? 

Yes. 

(N.T. 11/3/15, p. 5-9) (emphasis added). Defendant has failed to meet his burden as proof as he 

has failed to provide any evidence that did not know what he was doing. The record is clear that 

Defendant understood the nature of the charges against him; therefore, the voluntariness of the 

17 
plea has been established. There is nothing in the record that indicates that Defendant was 

confused, disoriented, incoherent or in any way disconnected from reality. To the contrary, 

Defendant appropriately engaged with the Court, answered questions in a lucid, coherent 

._. ._ ····-·-..=.:;..::..;-·---=-.. -- -- -·---··· �·--·· ------·-----··--·· - 

manner, and informed the Court that he was present to plead guilty to third degree murder. As 

stated above, a defendant is bound by the statements he makes during his guilty plea colloquy 

and may not assert grounds for withdrawing the plea that contradict statements that he made. 

McCauley, supra. There is no requirement that Defendant be pleased with the outcome of his 

decision to plead guilty, "[a]ll that is required is that [his] decision to plead guilty be knowingly, 

voluntarily and intelligently made." Reid, supra. Accordingly, this Court's decision to deny 

Defendant's motion to withdraw guilty plea should be affirmed. 

With respect to the Memorandum of Agreement, at the hearing regarding Defendant's 

motion to withdraw guilty plea, testimony from Assistant District Attorney Zarallo and Mr. 

Desiderio refuted Defendant's claim that no one ever explained the agreement to him and that he 

had no idea that he would be testifying against his co-conspirators. Their testimony shows that 

Defendant spent approximately 4 Yz hours at the District Attorney's Office with Mr. Desiderio, at 

which time they negotiated the agreement. Mr. Desiderio testified that he read aloud and 

explained each component of theagreement to Defendant in common parlance and answered any 

questions he had. Mr. Zarallo testified that he left Defendant and Mr. Desiderio alone in a room 

for nearly 45 minutes so they could review the agreement and then make any suggestions for 

changes that needed to be made. A review of the Memorandum of Agreement itself shows that it 

includes a provision that Defendant was expected to "testify truthfully and completely before any 

Grand Jury and at any hearing or trial in any case in which the District Attorney requests him to 

testify." Memorandum of Agreement, signed by Defendant on 11/2/15. Three days later, 

18 
Defendant returned to the District Attorney's Office to prepare for trial. Desiderio testified that 

Defendant called him during that meeting to discuss his apprehensions regarding testifying 

against his friends, thus showing that Defendant knew and understood that he would be testifying 

as part of his Memorandum of Agreement. Thus, the record more than sufficiently demonstrates 

that Defendant knowingly, intelligently and voluntarily pied guilty to third degree murder. There 

is nothing to support his claim that any mental illness or failure to take his medication in any way 

affected his ability to comprehend the details of the Memorandum of Agreement or the guilty 

plea. In addition, there is no evidence that Mr. Desiderio failed to explain the agreement and 

guilty plea to Defendant. Accordingly, this Court's judgment of sentence should be affirmed. 

Even if Defendant could demonstrate a fair and just reason for withdrawing his guilty 

plea, which he cannot, allowing him to do so would cause the Commonwealth to suffer 

substantial prejudice. The Commonwealth simply would not be put back into the same position it 

would have been prior to Defendant's guilty plea, as Defendant was aware already of the 

Commonwealth's evidence, trial strategy, and knew the outcome of Hutchins' and Johnson's 

trial. By changing his mind regarding his guilty plea only after he had assisted the 

Commonwealth prepare for trial, Defendant had a full preview of the Commonwealth's evidence 

before deciding his own trial strategy. Defendant had provided evidentiary details to the 

Commonwealth, including adding details to the crime scene map used at Hutchins' and 

Johnson's trial. Furthermore, Defendant participated as a witness at Hutchins' and Johnson's trial 

and knew that the outcome of their trial was a verdict of not guilty on all charges. With all of this 

additional information, Defendant regretted his decision to plead guilty. He wanted to go to trial 

since he knew his co-conspirators had received a favorable outcome, in large part, due to his 

decision to "go south" and deny that Hutchins and Johnson were involved at all in the shooting 

19 
death of the victim. Thus, Defendant's desire to withdraw his guilty plea was simply an attempt 

to manipulate the system. Allowing Defendant to withdraw his plea would be unfair to the 

Commonwealth and would substantially impair their ability to fairly prosecute Defendant. 

=·--·�- -=··-···=·--·=·-·--·�· - ���=·=-··--··--- --�·---· ---�- -=-· -····-···-- ···---·· ·····-- 

Therefore, this Court properly denied Defendant's motion to withdraw his guilty plea and this 

decision should not be disturbed on appeal. 

20 
CONCLUSION 

After review of the applicable statutes, testimony, and case law, this Court committed no 

error. This Court properly denied Defendant's motion to withdraw guilty plea. Accordingly, this 

-=.. .. �,._ ··-····-----------····--- --------·----- 

Court, s judgment of sentence should be affirmed. 

BY THE COURT: 

�J. 

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