Com. v. Muhammad, L.

J-S57038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : LATIF MUHAMMAD, : : Appellant : No. 3165 EDA 2016

Appeal from the Judgment of Sentence September 9, 2016 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0006761-2014

BEFORE: PANELLA, SOLANO and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 18, 2017

Latif Muhammad (“Muhammad”) appeals from the judgment of sentence imposed following his guilty plea to robbery, terroristic threats, and possession of an instrument of crime. See 18 Pa.C.S.A. §§ 3701(a)(1)(ii); 2706(a)(1); 907(a). We affirm.

The trial court set forth the facts underlying the guilty plea as follows:

Ravi Ghattamaneni [(“Ghattamaneni”)] … would testify that on March 29[,] 2014, he went to the Parx Casino in Bensalem, Pennsylvania[,] where he remained … until approximately 3:30 in the morning. During that tenure at the Parx Casino from March 29[], 2014 into March 30[], 2014[,] he came in contact with [Muhammad]. [Muhammad] was playing at the same poker table as him for a number of hours and they struck up a conversation.

At one point the victim, [] Ghattamaneni, allowed or gave [Muhammad] $50 to borrow to gamble. Eventually[,] [] Ghattamaneni left the casino with a total winnings of $3,100, which he had in an envelope.

There would also be video evidence from the Parx Casino [][,] which would show [] Ghattamaneni and [Muhammad] at the

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same poker table[,] as well as records by use of player cards at the Parx Casino. There would be video that would depict [Ghattamaneni] leaving the poker table and then walking outside to the taxi stand, and then[,] two minutes later[,] [Muhammad] getting up from that same poker table and then also going outside, coming in contact with [Ghattamaneni;] and then the two … walk[ed] towards the parking lot. [Muhammad and [] Ghattamaneni got into the same car, with Muhammad driving.] …

[] Ghattamaneni would also testify that on the way to the airport he attempted to exit the vehicle and asked to stop at McDonald’s and Dunkin Donuts[,] of which there is surveillance video which shows [Muhammad’s] vehicle at the drive through in McDonald’s. …

There was a receipt ultimately recovered from that vehicle during the execution of a valid search warrant[,] where that McDonald’s receipt from the early hours of March 30[], 2014 was recovered.

[Ghattamaneni then] asked [Muhammad] to stop at Dunkin Donuts[,] where he [] successfully [got] out of the car. [T]here is video surveillance [] of both [Muhammad] and [Ghattamaneni] having a discussion inside the [Dunkin Donuts] before [Ghattamaneni] return[ed] with [Muhammad] to … the vehicle of [Muhammad]. [Ghattamaneni] would then testify that when he was on I[-]95[,] and he pulled out his phone after [Muhammad] asked to see it, [Muhammad] pulled over the car, pulled out a folding knife … and placed it against [Ghattamaneni’s] neck…. [Muhammad] took [Ghattamaneni’s] phone and then demanded the money that was in the envelope. [Ghattamaneni] handed over the money, [and] put his hands up, at which time he was pushed out of the car on the side of I[-]95. He went up the ramp on I[-]95 South to Front and Market Street in the City and County of Philadelphia, at which time he had a bar patron from the Drinker’s Tavern call 911 and Philadelphia police responded. Th[e] Philadelphia police officer who responded said [that] once he learned that the robbery took place on I[-]95[,] he contacted Pennsylvania State Police who were assigned the case.

Pennsylvania State troopers would testify that they recovered all the video from the Parx Casino, the McDonald’s and the Dunkin

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Donuts. Additionally[,] they executed a search warrant of [Muhammad’s] home and vehicle on April 16[], 2014. Recovered from that search warrant was the hat that [Muhammad] was seen wearing in the Parx Casino surveillance video, the black and white striped shirt that was seen in the Parx Casino surveillance video, as well as a jacket which they believed to be the same jacket worn by [Muhammad] at the Parx Casino.

Similarly[,] when they executed the search warrant, they did find a folding box cutter in the pocket of the front driver’s side door of that vehicle, which was [] the same description that was provided by [Ghattamaneni], in addition to the receipts from McDonald’s which w[ere] recovered in the glove compartment. …

[Ghattamaneni] would also testify that throughout the trip[,] [Muhammad] shared with him and attempted to intimidate with his understanding that he was a boxer, and he was a professional boxer numerous times and how he could [] overpower anyone, [which] intimidated [Ghattamaneni].

Trial Court Opinion, 12/5/16, at 2-4 (citation omitted).

Muhammad was arrested and charged with various offenses. On June 7, 2016, Muhammad entered an open guilty plea to the above-mentioned crimes. The trial court deferred sentencing until September 9, 2016. On September 8, 2016, Muhammad filed a counseled Motion to Withdraw Guilty

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Plea.1 The trial court denied the Motion. On September 9, 2016, the trial court sentenced Muhammad to an aggregate term of five to ten years in prison. On September 27, 2016, Muhammad, pro se, filed a Motion for Reconsideration of Sentence.2 Muhammad, pro se, filed a timely Notice of Appeal on October 5, 2016. Thereafter, the trial court appointed Muhammad new counsel. On October 25, 2016, the trial court ordered Muhammad to file a Pa.R.A.P. 1925(b) concise statement prior to November 15, 2016. Muhammad filed a Concise Statement on November 22, 2016.

On appeal, Muhammad raises the following question for our review: “Did the [trial] court commit an abuse of discretion by denying [Muhammad’s] Motion to Withdraw his guilty plea prior to sentencing[,] when [Muhammad] established a colorable claim of innocence?” Brief for Appellant at 3 (capitalization omitted).

1 On July 19, 2016, Muhammad filed a pro se Motion to Withdraw Guilty Plea, despite the fact that he was still represented by counsel. Generally, pro se filings by a defendant, who at the time of filing is represented by counsel, are considered legal nullities. See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010); see also Commonwealth v. Mason, 130 A.3d 601, 671 (Pa. 2015) (noting that “our jurisprudence has consistently prohibited at both trial and appellate levels when strategic disagreements arise between defendant and counsel is the option of hybrid representation, where an otherwise represented defendant acts as de facto co-counsel exercising control over parts of the defense.”). Under Pennsylvania Rule of Criminal Procedure 576(A)(4), prothonotaries are required to accept and enter in the docket all pro se filings, and forward the filings to defendant’s counsel. Pa.R.Crim.P. 576(A)(4). Here, Muhammad’s pro se Motion to Withdraw Guilty Plea was entered in the docket and forwarded to his counsel. 2 The trial court denied the Motion as untimely filed on October 24, 2016, after the filing of the Notice of Appeal.

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Prior to addressing Muhammad’s claim, we must determine whether he properly preserved it for our review. It is well-settled that when a trial court orders an appellant to file a Rule 1925(b) concise statement, he must comply to preserve his claims on appeal. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Where “an appellant in a criminal case was ordered to file a [s]tatement and fails to do so, such that the appellate court is convinced that counsel has been per se ineffective, the appellate court shall remand for the filing of a [s]tatement nunc pro tunc and for the preparation and filing of an opinion by the judge.” Pa.R.A.P. 1925(c)(3). However, “[w]hen counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues[,] we need not remand and may address the merits of the issues presented.” Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012).

Here, the trial court ordered Muhammad to file a Rule 1925(b) concise statement prior to November 15, 2016. Muhammad’s counsel was per se ineffective for filing the Concise Statement on November 22, 2016. However, because the trial court addressed the claim raised in Muhammad’s Concise Statement in its Opinion, we will address the merits of Muhammad’s claim. See id.

Muhammad contends that the trial court abused its discretion in denying his Motion to Withdraw Guilty Plea. Brief for Appellant at 6. Muhammad points out that because he moved to withdraw his guilty plea

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prior to sentencing and asserted his innocence, he provided a “fair and just” ground for withdrawal of the plea. Id. at 7-8. Muhammad argues that he only pled guilty to see his ailing wife, and that he did not commit any crimes against Ghattamaneni. Id. at 7; see also id. at 8 (claiming that he had an emotional experience visiting his ill wife and immediately regretted the entry of the plea).

“Our law is clear that to be valid, a guilty plea must be knowingly, voluntarily and intelligently entered.” Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008). This Court has established six topics that must be covered by a valid plea colloquy: “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); see also Pa.R.Crim.P. 590, cmt.

“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. 591(A); see also Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013) (stating that “the decision to grant or deny a motion to withdraw a guilty plea rests within the trial court’s discretion, and we will not disturb the court’s decision on such motion unless the court abused that discretion.”) (citation omitted). Additionally, while

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there is no absolute right to withdraw a guilty plea, “[a] pre-sentence motion to withdraw a guilty plea should be liberally allowed and should be granted for any fair and just reason unless granting the motion would cause substantial prejudice to the Commonwealth.” Gordy, 73 A.3d at 623-24; see also Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015).

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 courts.

Carrasquillo, 115 A.3d at 1292.

Here, the trial court addressed Muhammad’s claim and determined that it is without merit. See Trial Court Opinion, 12/5/16, at 5-7; see also Commonwealth v. Johnson-Daniels, 2017 PA Super 209, **6-7 (Pa. Super. 2017) (concluding that the trial court did not abuse its discretion in denying the defendant’s pre-sentence motion to withdraw guilty plea where defendant filed the motion on the day of sentencing and his assertion of innocence was implausible). We agree with the sound reasoning of the trial court, affirm on this basis for the purpose of this appeal, and conclude that the trial court did not abuse its discretion in denying Muhammad’s Motion to Withdraw Guilty Plea. See Trial Court Opinion, 12/5/16, at 5-7.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/18/17

-8-Circulated 10/03/2017 02:33 PM