Appeal from the Order Entered June 20, 2012, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0001034-2009
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND MUSMANNO, JJ.
FORD ELLIOTT, P.J.E.
This is an appeal by the Commonwealth of Pennsylvania from the trial court's order of June 20, 2012, that allowed defendant to withdraw his guilty plea. We affirm.
Defendant's guilty plea stems from allegations that he raped his two nieces, K.B., who was two years old at the time of the incident in the spring of 2008, and A.B., who was ten years old at the time. On May 17, 2011, appellant entered an open plea, before the Honorable Denis P. Cohen, to two counts of rape of a child with serious bodily injury, two counts of unlawful contact with a minor, two counts of incest, two counts of endangering the welfare of a child--course of conduct, and two counts of indecent assault. Following defendant's plea on May 17, 2011, the two cases were continued to August 11, 2011, for a Megan's Law Assessment, presentence investigation, and a mental health evaluation.
On August 10, 2011, defendant, through his attorney, Deborah Ann Fegan, filed a motion to withdraw the guilty plea and motion for change of appointed counsel. On September 27, 2011, the trial court was informed that defendant was seeking to withdraw his guilty plea on the grounds of ineffective counsel and innocence. On that date, Attorney Fegan was permitted to withdraw and new counsel was appointed.
On June 20, 2012, a hearing was held on defendant's motion to withdraw his guilty plea. Defendant testified that he sought to withdraw his plea because he was innocent. (Notes of testimony, 6/20/12 at 30.) The Commonwealth called K.B.'s mother, K.F., to testify. K.F. testified that her daughter began behaving erratically when she and the district attorney were preparing her for trial. (Id. at 36.) According to K.F., her daughter started having nightmares. (Id. at 36-37.) K.F. stated that K.B. still has nightmares, but not as often. (Id. 38-39.) K.F. testified she believes preparing for trial would have an impact on K.B. emotionally. (Id. at 40.)
A.B.'s father, S.B., also testified. (Id. at 39.) He stated that after the incident, from 2009 until May of 2011, his daughter started getting into fights and she was expelled from school. (Id. at 43.) After defendant's guilty plea in May of 2011, A.B.'s behavior improved. (Id. at 44.) According to S.B., his daughter was upset when she learned defendant wished to withdraw his plea and she immediately got into another fight at school. (Id. at 45-46.)
Following the testimony, the Commonwealth argued defendant was engaged in gamesmanship; more specifically, defendant first requested a new attorney on May 4, 2011, and that request was denied. (Id. at 60.) The Commonwealth claimed defendant sought to circumvent that denial and obtain a new attorney. (Id. at 61.) The Commonwealth also argued it would be substantially prejudiced because conducting a trial would have an extremely negative emotional effect on the two victims. (Id. at 63.)
At the conclusion of the hearing on June 20, 2012, the trial court allowed defendant to withdraw his guilty plea. The cases were then listed before the Honorable James Murray Lynn for a scheduling conference on July 2, 2012. On July 20, 2012, the Commonwealth filed a notice of appeal.
Did the lower court abuse its discretion and err as a matter of law in granting defendant's motion to withdraw his guilty plea prior to sentencing where: (1) defendant's belated assertion of innocence did not mandate withdrawal of his plea notwithstanding all circumstances militating against the fairness and justice of the request, including those indicating gamesmanship; and (2) the Commonwealth would sustain substantial prejudice if withdrawal was permitted?
Commonwealth's brief at 5.
The standard of review that we employ in challenges to a trial court's decision regarding a presentence motion to withdraw a guilty plea is well-settled. "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); citing Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303, 1308 (1984)). In its discretion, a trial court may grant a motion for the withdrawal of a guilty plea at 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, 450 Pa. 185, 299 A.2d 268, 271 (1973). The policy underlying this liberal exercise of discretion is well-established: "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, 450 Pa. 492, 301 A.2d 829, 830 (1973) (quoting Commonwealth ...