J-A19020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRIAN JAMES VORRADO

                            Appellant                   No. 19 EDA 2015


           Appeal from the Judgment of Sentence November 6, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010279-2012


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                             FILED OCTOBER 03, 2016

        Brian James Vorrado appeals from the judgment of sentence entered

November 6, 2014, in the Philadelphia County Court of Common Pleas. The

trial court imposed an aggregate term of 13 to 45 years’ imprisonment,

following Vorrado’s guilty plea to charges of aggravated assault, robbery,

and possessing an instrument of crime (“PIC”).1           On appeal, Vorrado

contends the trial court erred when it denied his pre-sentence motion to

withdraw his guilty plea. For the reasons below, we affirm.

        The Commonwealth provided the following factual basis for the plea at

Vorrado’s guilty plea hearing:
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    See 18 Pa.C.S. §§ 2702(a), 3701(a)(1), and 907(a), respectively.
J-A19020-16


       [O]n March 20, 2012, at around 6:55 in the evening in the area
       of 2627 Muhlfeld [] Street in the city and county of Philadelphia
       … Cecilia Wasko and her brother, Salvatore DeMarco, were home
       at their residence … when [] Vorrado AKA Vincent Car[r] came
       into the property demanding that his money be returned.

             [Vorrado] proceeded to break a chair and remove the chair
       leg from the chair. He began to strike Salvatore DeMarco with
       the chair leg and when Cecilia Wasko came up to aid her
       brother[, Vorrado] did strike Cecilia Wasko on her face and
       ripped – demanded that she provide her money – the money to
       [him] and proceeded to rip her wallet off of her neck that she
       had on the lanyard around her neck.

              …[H]e also pushed or pulled Cecilia Wasko down a flight of
       stairs which caused her to break numerous bones in her face.

              The Commonwealth would also present the live testimony
       of Officer Thomas Brown … who had indicated that he arrived on
       the scene and did see Ms. Wasko at the bottom on the stairs
       bleeding profusely on or about her face and coughing up blood.
       [Officer Brown would also testify that Ms. Wasko identified
       Vorrado as the person who struck her and robbed her. See N.T.
       4/11/2014, at 21.]

             …[T]he complainant was transported to Mercy Fitzgerald
       Hospital where she did received treatment on a couple of
       occasions for the injuries to her face, [including] multiple broken
       bones.

N.T. Guilty Plea 2/10/2014, at 9-10.

       Vorrado was arrested and charged with aggravated assault, robbery,

receiving stolen property, theft, PIC, simple           assault, and   recklessly

endangering another person (“REAP”).2            His preliminary hearing was re-

scheduled twice when Wasko failed to appear for court. At the third listing,

____________________________________________


2
  See 18 Pa.C.S. §§ 2702(a), 3701(a)(1)(ii), 3925(a), 3921(a),907(a),
2701(a), and 2705, respectively.




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on August 28, 2012, Wasko finally testified against Vorrado and the charges

were held for court.3 However, on December 10, 2012, prior to trial, Wasko

died of a drug overdose.          Thereafter, the Commonwealth filed a motion

seeking to admit her testimony from the preliminary hearing at Vorrado’s

trial. The trial court granted the motion on April 16, 2013.

       Vorrado’s case was scheduled for trial on February 10, 2014. Prior to

jury selection, Vorrado presented a motion in limine seeking to preclude the

Commonwealth from introducing at trial prison telephone calls in which

Vorrado discussed Wasko’s initial failure to appear and her subsequent

death. The court denied the motion. See Order, 2/10/2014. Vorrado was

also informed that he faced a mandatory minimum sentence of 25 years

imprisonment under the “three strikes” statute. See N.T. Motion Volume I,

2/10/2014, 7-10; 42 Pa.C.S. § 9714(a)(2). The case then proceeded to jury

selection.

       Immediately after jury selection was completed, Vorrado decided to

enter an open guilty plea to the charges of aggravated assault, robbery and

PIC.   In exchange for the plea, the Commonwealth de-mandatorized the

offenses so Vorrado would not be subject to the “three strikes” law.     See



____________________________________________


3
  We note Vorrado was also originally charged for his assault on Wasko’s
brother, Salvatore DeMarco. However, those charges were dismissed after
the third preliminary hearing when DeMarco failed to appear to testify. See
N.T., 8/28/2012, at 21-22.



                                           -3-
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N.T., Guilty Plea Volume 1, 2/10/2014, at 5. Sentencing was deferred until

April 11, 2014, for the completion of a presentence investigation report.

        Thereafter, Vorrado filed three pro se motions:             (1) a motion to

withdraw his guilty plea, (2) a motion for removal of counsel, and (3) a

motion for continuance.4        At the April 11, 2014, sentencing hearing, new

counsel, Lou Mincarelli, Esq., entered his appearance for Vorrado, and prior

counsel was permitted to withdraw.              Following an in camera hearing to

discuss Vorrado’s purported cooperation with law enforcement, Mincarelli

formally withdrew Vorrado’s pro se motions, including his motion to

withdraw his plea.       Although Mincarelli wished to continue the sentencing

hearing    “to   do   further    research      to   prepare   adequately   …   for   the

sentencing[,]”5 the Commonwealth explained that it needed to preserve the

testimony of Officer Brown, who, in a few days, was being deployed for

military service in Abu Dhabi until November of 2014. See N.T., 4/11/2014,
____________________________________________


4
  In the motion to withdraw his plea, Vorrado claimed he was “innocent of
the charges he pled guilty to[,]” but felt coerced into entering a plea
because of the threat of several high range sentences. Motion to Withdraw
Guilty Plea, 3/14/2014, at 1. In his motion seeking counsel’s removal, he
asserted counsel failed to file “multiple motions” and “speedballed” him into
entering the guilty plea. Motion to Remove Attorney, 4/4/2014, at 1.
Further, in his motion for a continuance, Vorrado requested additional time
to retain new counsel, and present evidence of his active participation as an
“informant/operative in[] a major high profile federal investigation/probe[.]”
Motion for Continuance, 4/4/2014, at 1.
5
    N.T., 4/11/2014, at 8.




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12-13.     Therefore, the court agreed to bifurcate the hearing, and after

Officer Brown testified, sentencing was continued until August 7, 2014.

       However, on August 1, 2014, Vorrado filed a counseled motion to

withdraw his guilty plea. Specifically, he asserted (1) “his innocence of the

charges to which he pled guilty[;]” (2) the Commonwealth would not be

prejudiced if he were permitted to withdraw his plea; (3) prior counsel

“pressured him” into entering the plea; and (4) “he was confused as to the

potential ramifications of his guilty plea and the elements of the crimes to

which he pled guilty.” Motion to Withdraw Guilty Plea, 8/1/2014, at ¶¶ 9,

11-13. The court scheduled a hearing on Vorrado’s motion for September

11, 2014.     At the conclusion of the hearing, the court denied the motion.

Vorrado filed a timely motion for reconsideration, which the trial court

denied on September 29, 2014.

       On November 6, 2014, Vorrado was sentenced to an aggregate term

of 13 to 45 years’ imprisonment.6 He filed a post-sentence motion claiming

the trial court improperly denied his motion to withdraw his plea. The trial




____________________________________________


6
  The court imposed a term of six to 20 years’ imprisonment for the charge
of aggravated assault, a consecutive term of six to 20 years’ imprisonment
for the charge of robbery, and a consecutive term of one to five years’
imprisonment for the charge of PIC.




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J-A19020-16



court denied the motion on November 26, 2014, and this timely appeal

followed.7

       On appeal, Vorrado contends the trial court abused its discretion and

misapplied the law when it denied his pre-sentence motion to withdraw his

guilty plea.     He claims his timely, unconditional assertions of innocence

“constituted fair and just reasons for allowing his plea to be liberally

withdrawn.” Vorrado’s Brief at 18. Moreover, he notes that, in addition to

his claim of innocence, he made “numerous colorable demonstrations as to

the reasoning behind his articulation of innocence[,]” namely, that he had

been coerced to enter the plea by his attorney, and that he never reviewed

the elements of the crimes charged. Id. at 19-20. Vorrado also argues the

trial court abused its discretion in finding the Commonwealth would have

been substantially prejudiced if he were permitted to withdraw his plea. Id.

at 41-42.

       It is well-settled the decision whether to permit a defendant to

withdraw a guilty plea is within the sound discretion of the trial court.

Commonwealth v. Unangst, 71 A.3d 1017, 1019 (Pa. Super. 2013)

(quotation omitted).       However, the standard applied differs depending on

whether the defendant seeks to withdraw the plea before or after
____________________________________________


7
  On April 9, 2015, the trial court ordered Vorrado to filed a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Vorrado complied with the court’s directive, and filed a concise statement on
April 22, 2015.



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J-A19020-16



sentencing. When a defendant seeks to withdraw a plea after sentencing, he

“must     demonstrate    prejudice   on   the   order   of   manifest   injustice.”

Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011).

However, a pre-sentence motion to withdraw is decided under a more liberal

standard. Pursuant to Pennsylvania Rule of Criminal Procedure 591:

        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).

        In the seminal decision Commonwealth v. Forbes, 299 A.2d 268

(Pa. 1973), the Pennsylvania Supreme Court first defined the parameters for

granting a pre-sentence motion to withdraw:

        [I]n determining whether to grant a pre-sentence motion for
        withdrawal of a guilty plea, ‘the test to be applied by the trial
        courts is fairness and justice.’ 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.’

Id. at     271 (internal citations omitted).     Recently, the Supreme Court

reaffirmed the Forbes ruling, stating:

        [The] Forbes decision reflects that: there is no absolute right to
        withdraw a guilty plea; trial courts have discretion in
        determining whether a withdrawal request will be granted; such
        discretion is to be administered liberally in favor of the accused;
        and any demonstration by a defendant of a fair-and-just reason
        will suffice to support a grant, unless withdrawal would work
        substantial prejudice to the Commonwealth. See Forbes, 450
        Pa. at 190–91, 299 A.2d at 271.

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-1292 (Pa. 2015).


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J-A19020-16



     Since the Forbes decision, the courts of this Commonwealth have

wrestled with the determination of what constitutes a “fair and just reason”

for withdrawal of a guilty plea. Until recently, the Supreme Court adopted

the view that a defendant’s bald assertion of innocence was sufficient. See

Commonwealth          v.   Randolph,   718   A.2d   1242,   1244   (Pa.   1998)

(defendant’s claim that he was innocent of several of the 13 burglary

charges to which he pled guilty was sufficient to justify pre-sentence

withdrawal of plea; “[a]ppellant made a clear assertion of his innocence

before the trial court … [and] the uncontroverted evidence of record fails to

reveal that the Commonwealth would have suffered any prejudice, let alone

substantial prejudice, had [a]ppellant’s withdrawal request been permitted.”)

(footnote omitted).

     However, in Commonwealth v. Tennison, 969 A.2d 572, 577 (Pa.

Super. 2009), appeal denied, 982 A.2d 510 (Pa. 2009), a panel of this Court

upheld a trial court’s decision to deny a defendant’s pre-sentence motion to

withdraw his plea when his assertion of innocence was “conditional.” In that

case, the court found the defendant invoked his innocence in order to delay

his sentencing hearing, so that he could be sentenced first on a separate

federal matter: “Indeed no sooner would the [innocence] assertion be made

than it would be completely contradicted by statements admitting guilt

should sentencing be deferred until resolution of the federal case.”        Id.

The panel opined:




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J-A19020-16


            Our jurisprudence has stressed that the individual’s
      fundamental right to a trial requires a liberal granting of pre-
      sentence motions to withdraw guilty plea. Yet, it has also
      recognized there is no absolute right to a pre-sentence
      withdrawal of a plea, and has issued clear holdings that the
      denial of such a motion is proper where the evidence before the
      court belies the reason offered.

            Statements made both by counsel and Appellant during
      proceedings undermined the credibility of the assertion of
      innocence made to the court. Under the specific facts of this
      case, therefore, we cannot hold the court erred as a matter of
      law when it determined the assertion was simply pretextual, and
      thus failed to provide a fair and just reason to set aside
      Appellant’s guilty plea.

Id. at 578.

      Subsequently, an en banc panel of this Court, in Commonwealth v.

Katonka, 33 A.3d 44, 49 (Pa. Super. 2011) (en banc), distinguished

Tennison by limiting that decision to its facts, and re-asserted the Forbes

standard.     In Katonka, the defendant did not state his innocence in his

written motion to withdraw the plea, but rather first claimed he was innocent

during the motion hearing only after the Commonwealth pointed out that he

had failed to do so. The trial court denied the motion to withdraw, finding

the defendant’s assertion of innocence “incredible.” Id. at 46. In reversing

the trial court’s decision, the en banc panel held:

      Here, unlike the circumstances in Tennison, Katonka specifically
      asserted that he was innocent of the crimes and this assertion
      was neither contradictory nor conditioned on some other event.
      The fact that Katonka first asserted his innocence only after
      being prompted by the District Attorney is of no moment as
      Katonka asserted his innocence prior to sentencing on two
      separate occasions without condition, the second without any
      prompting from the District Attorney.



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J-A19020-16



Id. at 49 (internal citations omitted). The Katonka Court also specifically

criticized the trial court for “rendering a credibility determination as to the

defendant’s actual innocence.”     Id.   Rather, the en banc panel opined:

“[A]s the record reflects that Katonka twice clearly asserted his innocence

without condition, under Forbes and Randolph, there was a ‘fair and just’

reason for withdrawal of the plea.” Id. at 50.

      Most recently, however, in Carrasquillo, supra, the Pennsylvania

Supreme Court retreated from the per se approach it advocated in Forbes.

There, the defendant first asserted his innocence during his sentencing

allocution, claiming he had been framed by the Central Intelligence Agency

and possessed by the “Antichrist,” and insisting a polygraph test would

prove his innocence.    Carrasquillo, supra, 115 A.3d at 1286.        The trial

court, however, denied his motion to withdraw, finding the defendant’s

innocence claim was “implausible, insincere, and ‘nothing more than an

attempt to manipulate the justice system’ by introducing a belated

competency-based defense.” Id. at 1287. A divided en banc panel of this

Court later reversed based upon the Forbes standard, noting “trial courts

are ‘not permitted to make a determination regarding the sincerity of

[defendants’] unambiguous claims of innocence.’” Id. at 1288.

      The Supreme Court, however, reversed the en banc panel on appeal.

The Carrasquillo Court stated the “existing per se approach to innocence

claims is unsatisfactory.” Id. at 1292. The Court explained:




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J-A19020-16


        Presently, we are persuaded by the approach of other
        jurisdictions which require that a defendant’s innocence claim
        must be at least plausible to demonstrate, in and of itself, a
        fair and just reason for presentence withdrawal of a 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 courts.

Carrasquillo, supra, 115 A.3d at 1292 (citation omitted and emphasis

supplied).

        The Supreme Court concluded the trial court had acted within its

discretion when it denied the defendant’s motion to withdraw his plea. The

Court emphasized the defendant’s claim of innocence was first made during

his sentencing allocution, and was accompanied by “bizarre statements”

which “wholly undermined its plausibility, particularly in light of the

Commonwealth’s strong evidentiary proffer at the plea hearing.”           Id. at

1293.

        Notably, the Supreme Court came to the same conclusion in a

companion case decided the same day, Commonwealth v. Hvizda, 116

A.3d 1103 (Pa. 2015). In Hvizda, the defendant entered a guilty plea to

first-degree murder and possessing an instrument of crime for the stabbing

death of his estranged wife.     Id. at 1104.    At his sentencing hearing two

months later, the defendant sought to withdraw his plea, stating simply “I’m

here to maintain my innocence in the charge of murder in the first degree.”

Id. At a subsequent hearing, the defendant again stated he was innocent,


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J-A19020-16



but offered no evidence in support of his claim.           The Commonwealth

requested the court deny the motion, and, in support, introduced into

evidence the defendant’s telephone conversations from prison in which he

stated that although he “‘did it’ … he wished to stand trial to ‘get some of

the story out.’”       Id.    The trial court thereafter denied the motion to

withdraw, finding “the Commonwealth had ‘presented compelling and unique

evidence to establish [the defendant’s] bald assertion of innocence was at

best pretextual and an attempt to manipulate the system.’” Id. at 1105. A

divided panel of this Court reversed on appeal based upon its belief that,

under Katonka, “credibility assessments relative to a defendant’s claim of

innocence were impermissible.”          Id.

       The Supreme Court, once again, disagreed with the decision of this

Court and opined:

             In the companion case of Carrasquillo, … we have
       determined that a bare assertion of innocence—such as [the
       defendant] provided as the basis for withdrawing his guilty
       plea—is not, in and of itself a sufficient reason to require a court
       to grant such a request. See Carrasquillo, [] 115 A.3d at
       1285. Accordingly, and for the reasons set forth more fully in
       that case, the common pleas court did not err in denying [the
       defendant’s] withdrawal motion.

Id. at 1107.8
____________________________________________


8
  We note the Hvizda Court also rejected the Commonwealth’s argument
that the post-sentence “manifest injustice” standard applied under the facts
of that case because the only possible sentence the trial court could have
imposed was life imprisonment. In doing so, the Court disapproved of its
prior decision in Commonwealth v. Lesko, 467 A.2d 307 (Pa. 1983),
(Footnote Continued Next Page)


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J-A19020-16



      With this background in mind, we consider the ruling of the trial court

in the present case. The court first determined Vorrado did not provide a

“fair and just reason” for the pre-sentence withdrawal of his guilty plea. The

court opined:

      [T]his Court could not ignore the conditional basis of [] Vorrado’s
      claims when evaluating [his] request to disregard his plea of
      guilt. This Court duly considered [Vorrado’s] previous conniving
      efforts to prevent the victim’s appearance in court with
      “assisted” drug abuse, his designed delays over a two year
      period, the precipitous timing of change of plea immediately
      after jury selection, and his knowledge of the Commonwealth’s
      announced future critical witness unavailability and difficulties.
      The conditional basis and timing of the filing of [his] withdraw of
      his pro se Motion to Withdraw also influenced the Court.
      [Vorrado] withdrew his previous pro se Motion only after he had
      been granted extra time to gain mitigating credit for confidential
      cooperation.

Trial Court Opinion, 10/14/2015, at 12.

      Conversely, Vorrado emphasizes the timeliness of his “clear assertions

of innocence,” which he first made in his pro se motion filed “slightly over a

month following his guilty plea,” and later repeated in his counseled motion.

See Vorrado’s Brief at 23.          Moreover, unlike the conditional withdrawal in

Tennison, or the “last-minute, bald assertion of innocence” offered in

Carrasquillo, Vorrado claims he “made colorable demonstrations as to the

reasoning behind his articulation of innocence,” both in his pro se and

                       _______________________
(Footnote Continued)

holding Lesko “is incompletely reasoned on the relevant point and should
not remain controlling authority.” Hvizda, supra, 116 A.3d at 1105.




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J-A19020-16



counseled petitions to withdraw the plea. Id. at 19, 20. He explains he was

coerced to plead guilty by his former attorney, he did not review the

elements of the crimes before entering his plea, and he identified a new,

previously unavailable exonerating witness.9 Id.

       We conclude, however, that under the unique circumstances presented

in this case, the trial court did not abuse its discretion in denying Vorrado’s

motion to withdraw his plea. A review of the record reveals Vorrado entered

his plea only after (1) the jury had been selected, (2) his motion to preclude

the admission of his intercepted prison phone calls was denied, and (3) the

Commonwealth had arranged to transport eyewitness Salvatore DeMarco to

court on a stretcher.       See N.T., 9/11/2014, at 18-19; Order, 2/10/2014.

Although he first proclaimed his innocence in a pro se motion filed just over

a month later, he knowingly and voluntarily withdrew that motion less

than a month later in order to proceed to sentencing. See N.T., 4/11/2014,

at 9.10    At that time, the court bifurcated the sentencing hearing, upon

Vorrado’s motion, so that his newly retained counsel could have more time
____________________________________________


9
 Although counsel stated at the motion to withdraw hearing that the alleged
witness was “outside the courtroom,” he did not call the witness to testify.
N.T., 9/11/2014, at 9. Further, while counsel indicated he provided the
Commonwealth with a copy of the witness’s statement to his investigator, no
such statement is included in the certified record. See id.
10
   Indeed, at that time, counsel stated: “I would ask for bifurcation of the
sentencing as you are just allowing me to enter for me to do further
investigation to prepare adequately for my client for the sentencing.”
N.T., 4/11/3014, at 8 (emphasis supplied).



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to prepare, and present evidence of his purported cooperation with law

enforcement.      However, the court took the testimony of first responder

Officer Brown, because the officer was scheduled to be deployed out of the

country a few days later. See Id. at 12-16. It was only after Officer Brown

was deployed that Vorrado’s attorney filed a second motion to withdraw his

plea one week before the scheduled sentencing hearing. As the trial court

opined:

       After Officer Brown was deployed, [Vorrado] pounced upon the
       opportunity to prevent the Commonwealth’s ability to prosecute
       him and filed a new and improved Motion to Withdraw his Guilty
       Plea. In short, examination of the record reveals his calculated
       scheme to avoid responsibility for his heinous actions.

Trial Court Opinion, 10/14/2015, at 13.

       In addition to the gamesmanship Vorrado displayed – by (1) filing a

pro se motion to withdraw after a jury was selected, (b) withdrawing the

motion after securing new counsel and attempting to get sentencing credit

for his cooperation with authorities, and (3) refiling the motion after a crucial

witness became unavailable – the trial court was also presented with

Vorrado’s intercepted prison phone calls which revealed his attempt to

“orchestrate Ms. Wasko’s nonappearance at his preliminary hearings and

trial listings with induced narcotics abuse.”11 Id. at 8. Considering all of the
____________________________________________


11
  See Philadelphia Prison Phone Calls of Vorrado, dated 8/15/2012 (telling
“Female D” to “[h]ave a nice party” with Wasko the night before the second
preliminary hearing); 8/16/2012 (telling “Female D” she is “going to have
one more rough night [doing drugs with Wasko] on the 27 th,” the night
(Footnote Continued Next Page)


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J-A19020-16



above circumstances, we find the court acted well within its discretion when

it determined Vorrado’s assertion of innocence                was    not “plausible.”

Carrasquillo, supra, 115 A.3d at 1292.               Like in Carrasquillo, Vorrado’s

intercepted prison phone calls, as well as the dubious timing of the filing of

his motions to withdraw, “wholly undermined” the plausibility of his

professions of innocence.            Id. at 1293.      Although Vorrado insists his

protestations of innocence were corroborated by his “explanations for his

assertions”12 – i.e., counsel forced him to plead guilty, he did not review the

elements of the crimes, and he found a new witness – none of these

explanations     constitute      a   “colorable     demonstration”   that   permitting

withdrawal of his plea “would promote fairness and justice.” Carrasquillo,

supra, 115 A.3d at 1292.



                       _______________________
(Footnote Continued)

before the third preliminary hearing listing), 8/20/2012 (telling “Female D”
to take Wasko “to a hotel [or] Atlantic City” so she will not appear for the
third listing); 8/26/2012 (telling “Bobby” and “Female D” to get Wasko out
of her house before the third listing), 10/30/2012 (stating to “Female D”
that “when stuff like this happens in a drug house, you get robbed, you beat
somebody up, you don’t call the cops! They should have took it on the chin.
They robbed me.”), 12/6/2012 (stating to “Female D,” “[t]ell Anthony
[presumably one of Vorrado’s friends] he said he wanted to do something for
me right … [t]ell him, that he knows the phone box is in that yard. Right?
You understand?       Like, the night before [trial] – you follow me?”);
12/7/2012 (stating “Somebody’s gotta take that phone out [at Wasko’s
house] like … two nights before [trial].”).
12
     Vorrado’s Brief at 29.




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       Furthermore, while we agree Vorrado’s motion should be adjudged

under the pre-sentence standard, we emphasize that here, Vorrado

proclaimed his innocence only after his sentencing hearing had begun, the

Commonwealth presented the testimony of its “impeccable”13 fact witness,

Officer Brown, and Officer Brown subsequently became unavailable. Relying

on the most recent pronouncements of the Supreme Court in Carrasquillo

and Hvizda, we find no abuse of discretion on the part of the trial court in

concluding Vorrado failed to provide a fair and just reason for the withdrawal

of his guilty plea.    Because Vorrado did not demonstrate this prerequisite,

we need not consider whether the withdrawal of his plea would substantially

prejudice the Commonwealth. See Carrasquillo, supra, 115 A.3d at 1293

n.9. Accordingly, we affirm the judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2016



____________________________________________


13
  N.T., 9/11/2014, at 36 (trial court describing testimony of Officer Brown,
noting his absence would be “an extreme loss”).



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