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[U] Commonwealth v. Gathright

Superior Court of Pennsylvania

February 12, 2014



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




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 v. Neely, 449 Pa. 3, 295 A.2d 75, 76 (1972)). In Forbes, our Supreme 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)).

Commonwealth v. Elia, ___ A.3d ___, 2013 WL 6821107 at *4 (Pa.Super. December 24, 2013).

The Commonwealth argues the trial court failed to make separate and distinct inquiries into whether appellant had a fair and just reason for withdrawal, and whether withdrawal substantially prejudiced the Commonwealth. In its first argument, the Commonwealth complains the trial court erroneously treated defendant's assertion of innocence as absolute. In response, defendant maintains that his assertion of innocence qualifies as a "fair and just reason" to withdraw the guilty plea pursuant to Forbes, supra.

The record reflects that the defendant was asked: "Are you telling Judge Cohen today under oath that you are innocent of the charges against you in this case?" The defendant answered: "Yes, I am." (Notes of testimony, 6/20/12 at 8-9.) The Commonwealth contends the trial court failed to inquire into the reasons for the withdrawal. The record indicates otherwise. On redirect examination, the defendant was asked,
Question: Why did you say those words to Judge Cohen on May 17, 2011 if today you're telling him that you're innocent of these charges?
The defendant: Why did I say I was guilty?
Q. Yes.
The defendant: Because Ms. Fegan advised me to plead guilty. And she told me that if I lose, I can get up to life in prison. And she said that if I plead guilty, I can be home within -- by the time I'm 35.

Id. at 32.

Herein, the Commonwealth claims that Commonwealth v. Tennison, 969 A.2d 572 (Pa.Super. 2009), appeal denied, 603 Pa. 681, 982 A.2d 510 (2009), and Commonwealth v. Walker, 26 A.3d 525 (Pa.Super. 2011), appeal denied, 603 Pa. 681, 982 A.2d 510 (2012), illustrate the general rule allowing for permissive grants of pre-sentence plea withdrawal is not absolute. We find those cases inapposite. In Tennison, the defendant pled guilty to certain charges, but sought to avoid the impact of the state guilty plea on his sentence in an outstanding federal case. Id., 969 A.2d at 573. The defendant asked for a continuance so that his Pennsylvania convictions would not be factored into his federal sentence. Id. When asked if he wished to withdraw his plea, the defendant gave the following reply, under oath: "The only reason I was wondering about my plea, if I got sentenced today, it would [a]ffect my Federal sentencing and if that was to happen, yes." Id. at 574. The trial court continued the sentencing hearing. Id. at 575.

At a subsequent hearing, the defendant moved to withdraw his guilty plea, "as sentencing in his federal case was still pending." Id. The defendant claimed that his plea was involuntary because it was induced by defense counsel's erroneous assumption that he would be sentenced in the federal case prior to being sentenced in the state case and that the trial court could eliminate the involuntary nature of the plea if it would continue the case until after the federal sentence was imposed. Id. The Commonwealth objected to the motion to withdraw because it was not based upon a claim of innocence. Id. The defendant then added that he had always maintained his innocence of the most serious charges. Id. The trial court denied the motion to withdraw holding that the defendant's claim of innocence was not credible. Id. The trial court found that defendant was "trying to get the best possible deal." Id. at 576. On appeal, this court affirmed stating while a clear assertion of innocence constitutes a "fair and just reason, " a conditional and contradictory assertion of innocence does not. Id. at 577. Tennison was limited to the specific facts of that case. Id. at 578.

In Walker, this court affirmed a sentencing court's denial of a motion to withdraw a plea of guilty but mentally ill on the following bases: (1) that it was the second time that appellant had attempted to withdraw a guilty plea, a circumstance which struck the court as an attempt to improperly manipulate the criminal justice system, and (2) appellant offered "dubious grounds" for withdrawing his plea. Walker, 26 A.3d at 530-531. Appellant merely speculated that the Commonwealth possessed a videotape that would exonerate him. Id. at 531. At no point did appellant expressly state that he did not commit the offense. Id.

Recently, in Commonwealth v. Unangst, 17 A.3d 1017 (Pa.Super. 2013), this court went so far as to say, "In this Commonwealth, if a defendant asserts his innocence as a basis for withdrawal of a guilty plea before being sentenced, that request must be granted unless the Commonwealth would be prejudiced." In Commonwealth v. Carrasquillo, 78 A.3d 1120 (Pa.Super. 2013) (en banc), this court examined this very issue; namely, whether the defendant's assertion "I didn't commit this crime" as part of his allocution statement at sentencing was a fair and just reason to withdraw his guilty plea. The Carrasquillo court, after a thorough analysis beginning with the two-part standard enunciated by our supreme court in Forbes, determined that "Appellant's presentence assertion of innocence is a 'fair and just' reason to grant his guilty plea withdrawal." Id. at 1128.

In the instant case, defendant claimed clearly and unconditionally declared that he was innocent. Accordingly, the first prong of the two-part test enunciated in Forbes has been met. We now consider whether defendant's withdrawal of his guilty plea will substantially prejudice the Commonwealth. Our definition of "substantial prejudice" is well established:

[P]rejudice would require 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 take place as scheduled. This follows from the fact that the consequence of granting the motion is to put the parties back in the pre-trail stage of proceedings. This further follows from the logical proposition that prejudice cannot be equated with the Commonwealth being made to do something it was already obligated to do prior to the entry of the plea.

Carrasquillo, 78 A.3d at 1129, quoting Commonwealth v. Kirsch, 930 A.2d 1282, 1286 (Pa.Super. 2007), appeal denied, 596 Pa. 727, 945 A.2d 168 (2008) (emphasis added). Case law establishes that prejudice is about the Commonwealth's ability to try its case, not about the personal inconvenience to complainants unless that inconvenience somehow impairs the Commonwealth's prosecution. Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa.Super. 2013).

Herein, the trial court granted defendant's motion to withdraw because it concluded that the withdrawal of defendant's guilty plea would not cause substantial prejudice to the Commonwealth. The trial court explained:

The Commonwealth has not presented any evidence that it will be substantially prejudiced here. One way to prove substantial prejudice is to establish that the defendant is engaging in gamesmanship. See [Commonwealth v.] Cole, 564 A.2d [203, ] at 205 [(Pa.Super. 1989)][finding substantial prejudice where defendant withdrew his plea hoping the Commonwealth would not be able to fly its witness back to court]. The Commonwealth contends that defendant's motion to withdraw his guilty plea was a ploy to receive the new counsel he was denied on May 4, 2011. (N.T. 6/20/2012 at 63.) There is no evidence that is what occurred. The defendant's stated reason for withdrawing the plea was an assertion of innocence. Id. at 30. Furthermore, even if the motion was a ploy to obtain new counsel, it does not rise to the level of gamesmanship. Unlike Cole, the defendant has not gained any strategic advantage by withdrawing his plea. Defendant did receive new counsel, subsequent to withdrawing his plea, however, this change has not improved his position at trial.
Also, unlike [Commonwealth v.] Carr, [543 A.2d 1232, 1234 (Pa.Super. 1988)], [the memory of the five-year-old victim would be severely dulled by the delay in trial], the Commonwealth failed to present any evidence that the delay will place the Commonwealth in a worse position at trial. The Commonwealth simply argued that being forced to testify will be a very traumatic experience for the victims. (N.T. 6/20/2012 at 63.) While this is certainly true, both victims are willing to testify. Their parents are also willing to testify at trial. No evidence has been lost or destroyed. There is no assertion that the memory of either victim was severely dulled by the delay. The law requires that the prejudice to the Commonwealth be something more than having to present its case at trial. Commonwealth v. Kirsch, 930 A.2d [1282] at 1287 [(Pa.Super. 2007)]. Nothing more than that has been alleged here.

Trial court opinion, 12/13/12 at 5.

While the Commonwealth presented the testimony of two relatives of the victims who testified the victims may experience trauma by being called to testify at trial, that same trauma would likely have occurred had the case gone to trial when it was originally scheduled. We note that no expert opinion related to emotional trauma was presented. Compare Commonwealth v. Hutchins, 683 A.2d 674, 676 (Pa.Super. 1996) (finding substantial prejudice pursuant to Forbes where the Commonwealth produced testimony of a licensed psychologist "on the victim's cognitive dysfunction, post-traumatic stress disorder and loss of memory"). There was no testimony regarding any kind of memory loss from the delay. The fact that the victims in this case are children does not bar withdrawal of the defendant's guilty plea. See generally Carrasquillo (allowing appellant who pleaded guilty to the rape of a child to withdraw his guilty plea after appellant asserted his innocence; Gordy, supra (same); Commonwealth v. Katonka, 33 A.3d 44 (Pa.Super. 2011) (en banc) (same). Our precedent makes clear that this court's point of inquiry with regard to substantial prejudice is the Commonwealth's ability to try its case. See Gordy, supra. Had the defendant never pleaded guilty, the Commonwealth would have been in the same position in which it presently finds itself. As this court so aptly stated in Kirsch, "[P]rejudice cannot be equated with the Commonwealth being made to do something it was already obligated to do prior to the entry of the plea." Id., 930 A.2d at 1286.

Accordingly, we affirm the order of the trial court. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/12/2014

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