Appeal from the Judgment of Sentence of November 30, 2010 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos.: CP-51-CR-0009652-2009 CP-51-CR-0009653-2009
BEFORE: BENDER, P.J., GANTMAN, J., PANELLA, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J., OTT, J., and WECHT, J.
Jose Carrasquillo ("Appellant") appeals from the judgment of sentence entered on November 30, 2010. Originally, Appellant pleaded guilty to two counts of unlawful contact with a minor,  and one count each of rape, involuntary deviate sexual intercourse,  aggravated indecent assault,  aggravated assault,  unlawful restraint,  interference with the custody of a child,  and ethnic intimidation. However, at his sentencing hearing, Appellant sought to withdraw his guilty plea on the basis that he was innocent. The sentencing court denied his motion.
We vacate the judgment of sentence, and we remand this case for trial on the original counts.
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In its opinion, the learned trial court summarized the troubling facts of this case as follows:
On June 1, 2009, at approximately 7:10 a.m., [Appellant] sexually assaulted a sixteen-year-old girl as she walked to school by grabbing her breast as he attempted to engage her in conversation. The girl was able to get away and run to school, where she reported the incident to a staff member. After talking to [the] staff, the girl went to the cafeteria and was talking to [her] friends when she saw [Appellant] walk through the cafeteria and approach her. She screamed and fled from the school.
[One hour later], at approximately 8:10 a.m., [Appellant] violently raped an eleven-year-old girl [("N.O.")] as she walked to school by penetrating her anally and vaginally with his fingers and penis, and by putting his penis in her mouth. Responding officers observed that the girl was covered in blood from the waist down. The girl suffered severe vaginal lacerations, for which she had to have surgery[, ] and other injuries as a result of the assault. She remained hospitalized until June 3, 2009.
Trial Court Opinion ("T.C.O."), 12/29/2011 at 1-2 (paragraphs reordered for chronological clarity, citations to transcript omitted).
On August 11, 2010, Appellant pleaded guilty to the above-listed charges. Notes of Testimony ("N.T."), 8/11/2010, at 6-12. During the plea colloquy, the trial court informed Appellant of his trial and appellate rights, as well as the consequences associated with pleading guilty. Id. at 6-31. The trial court further confirmed that Appellant was competent to enter his plea. Id. at 31. The trial court concluded that, "based on the oral colloquy and [Appellant's] execution of written guilty plea forms, [Appellant's] waivers were found to be knowing, intelligent, and voluntary." T.C.O. at 3.
On November 30, 2010, the parties returned to the trial court for sentencing. The Commonwealth presented testimony from numerous witnesses, including members of N.O.'s family, and also played a videotaped victim impact statement from N.O. T.C.O. at 4-6; N.T., 11/30/2010, at 85-87. Following that testimony, Appellant made the following statement by way of allocution:
I don't even know how to start this. It's a lot more to this than what people think, you know, and I took this plea even though I didn't want to take it and just to save [N.O.] pain and suffering, you know. But when I sit here and I look at everything and I see [N.O.'s] family sit here and everybody in the world badgering me and constantly saying, oh this, that, you are the bad guy, you know, I was letting you know I will never get a fair trial here, and the reason why I took my plea as well. But I know my story wouldn't stick and nobody here would believe my story either unless they had a polyester graph [sic] and lie detector, then maybe the truth would come to light. And I want the [c]ourt to know that it wasn't on record, you know.
In 2002[, ] I was locked up and an event occurred, and in this event the Antichrist came out of me. It may sound crazy, but what happened was the CIA came to me and tried to cover it up and I have been attacked several times ever since this event happened. It happened while the serpent was present by the boat. The Antichrist, he came out of me, and ever since then this has been happening I've been attacked. I'm not talking about just this event. They knew I was going to leave, you know, and then now I've got immigration I'm dealing with. They keep coming to me, giving me offers to go to China and stuff like that to assassinate the president over there, stuff like that. And regardless, I know one thing for sure, they also gave me a polyester graph [sic], a lie detector test that would prove my innocence.
But why am I going to fight a case if I've been framed by the system? How am I going to fight a case? There's nowhere to act. I guarantee that if I have a polyester graph [sic] that everything, every word I said right now would not come out a lie, because I didn't commit this crime.
N.T., 11/30/2010, at 122-24 (emphasis added).
After Appellant's allocution statement, the trial court asked whether Appellant wanted to withdraw his guilty plea. Appellant answered in the affirmative. N.T., 11/30/2010, at 124, 128-29. Appellant and his counsel both reasserted that Appellant was innocent of the crimes to which he had previously pleaded guilty. See id. at 129 ("Your Honor, Mr. Carrasquillo has informed me that he is innocent[.]"); id. at 130 ("To prove my innocence . . ."). The Commonwealth objected, asserting that permitting Appellant to withdraw his guilty plea would result in substantial prejudice to the Commonwealth. Id. at 130-31. The Commonwealth averred that, in reliance upon Appellant's guilty plea, it had already assured N.O. that she would not have to testify. Id. at 127-28.
The trial court denied Appellant's motion to withdraw his guilty plea, finding that Appellant "was not acting in good faith and withdrawal would cause substantial prejudice to the Commonwealth." T.C.O. at 8. The trial court found compelling the Commonwealth's argument that forcing N.O. to testify at trial would be "extremely prejudicial to her well-being." Id. (citation omitted). The trial court stated: "We are talking about an 11-year-old child. I'm looking at this situation involving the trauma to this particular child under these circumstances as being substantially prejudicial to the Commonwealth and its witness." N.T., 11/30/2010, at 127.
After the trial court denied Appellant's oral motion to withdraw his plea, it sentenced Appellant to an aggregate term of thirty to sixty-six years' imprisonment. T.C.O. at 8. This timely appeal followed. On April 26, 2011, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 11, 2011, Appellant timely complied. On October 23, 2012, a panel of this Court issued a memorandum opinion vacating Appellant's judgment of sentence and remanding the matter to the trial court. On November 1, 2012, the Commonwealth requested reargument en banc, which this Court granted. The case has now been briefed and argued to this Court en banc.
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As he did before the initial panel, Appellant raises one issue for our consideration:
Did not the lower court err in denying [A]ppellant's request to withdraw his guilty plea where the request was made prior to the imposition of sentence, [A]ppellant presented a fair and just reason for the withdrawal of the plea, and the Commonwealth would not have been substantially prejudiced by the withdrawal?
Brief for Appellant at 3. A trial court may grant a motion for the withdrawal of a guilty plea at its discretion any time before the imposition of sentence. Pa.R.Crim.P. 591(A). "Although there is no absolute right to withdraw a guilty plea, properly received by the trial court, it is clear that a request made before sentencing . . . should be liberally allowed." Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973) (emphasis in original). Our Supreme Court has clearly articulated the policy behind this liberal exercise of discretion: "The trial courts in exercising their discretion must recognize that 'before judgment, the courts should show solicitude for a defendant who wishes to undo a waiver of all constitutional rights that surround the right to trial – perhaps the most devastating waiver possible under our Constitution.'" Commonwealth v. Santos, 301 A.2d 829, 830 (Pa. 1973) (quoting Commonwealth v. Neely, 295 A.2d 75, 76 (Pa. 1972)).
In Forbes, our Supreme Court provided the framework for evaluating presentencing requests to withdraw guilty pleas. There, the Court instructed that, "in determining whether to grant a presentence motion for withdrawal of a guilty plea, 'the test to be applied by the trial courts is fairness and justice.'" Forbes, 299 A.2d at 271 (quoting United States v. Stayton, 408 F.2d 559, 561 (3d Cir. 1969)). Specifically, Forbes established a two-part standard: "If the trial court finds 'any fair and just reason, ' withdrawal of the plea before sentence should be freely permitted, unless the prosecution has been 'substantially prejudiced.'" Forbes, 299 A.2d at 271 (citation omitted). The Forbes test was reaffirmed by the Pennsylvania Supreme Court in Commonwealth v. Randolph, 718 A.2d 1242, 1245 (Pa. 1998), and was recently reiterated and followed by this Court, sitting en banc in Commonwealth v. Katonka, 33 A.3d 44, 46-48 (Pa.Super. 2011). Additionally, we have held that the presentence standard for withdrawal applies when a motion to withdraw a guilty plea is made during a sentencing hearing, but before the sentence has been imposed. Commonwealth v. Car r, 543 A.2d 1232, 1233 (Pa.Super. 1988).
It bears emphasis that we do not write here on a blank slate. "Although it is apparently an extremely unpopular rule with prosecutors and trial courts, since Forbes, caselaw has continuously upheld an assertion of innocence as a fair and just reason for seeking the withdrawal of a guilty plea." Commonwealth v. Kirsch, 930 A.2d 1282, 1285 (Pa.Super. 2007), appeal denied, 596 Pa. 727 (Pa. 2008); see also Randolph, 718 A.2d at 1244; Katonka, 33 A.3d at 50.
In our appellate capacity, we keep in mind that "[a] trial court's decision regarding whether to permit a guilty plea to be withdrawn should not be upset absent an abuse of discretion. 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. Pardo, 35 A.3d 1222, 1227 (Pa.Super. 2011) (quoting Commonwealth v. Prysock, 972 A.2d 539, 541 (Pa.Super. 2009); Commonwealth v. Anthony, 475 A.2d 1303, 1308 (Pa. 1984)). "[A]n assertion of innocence may constitute a fair and just reason for the pre-sentence withdrawal of a guilty plea." Commonwealth v. Miller, 639 A.2d 815, 816-17 (Pa.Super. 1994); Forbes, 299 A.2d at 271.
In light of the above-stated principles, our appellate task is clear. We must determine: (1) whether Appellant's assertion of innocence qualified as a "fair and just reason" such that it would allow him to withdraw his guilty plea; and (2) whether the Commonwealth would suffer "substantial prejudice" as a result of that withdrawal. Forbes, 299 A.2d at 271.
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Appellant contends that he demonstrated a fair and just reason to support withdrawal of his plea, to wit, actual innocence:
The fact that [A]ppellant included in his motion references to the CIA, the Antichrist, and a frame-up does not negate his repeated claims of innocence . . . . The fact that he participated in a guilty plea colloquy does not negate his claims of innocence. [Appellant's] requests for a lie detector test and a full investigation were not a condition for withdrawing his plea, but rather were offered in support of his assertion of innocence. And the fact that [A]ppellant made his motion late into ...