J-A21034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                                   Appellant

                             v.

JAMES VINSON,

                                   Appellee            No. 1599 EDA 2013

                         Appeal from the Order March 5, 2013
                 In the Court of Common Pleas of Montgomery County
                  Criminal Division at No(s): CP-46-CR-0004324-2009

BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED AUGUST 27, 2014

        The Commonwealth of Pennsylvania (the Commonwealth) appeals the

order entered March 5, 2013, which permitted James Vinson (Vinson) to

withdraw his guilty plea to the crimes of sexual assault and unlawful

restraint.1 We affirm.

        Vinson was charged with the aforementioned offenses, and a variety of

others, after he was accused of forcing himself on a woman (the

Complainant) in the basement of his home on March 26, 2009. Vinson

waived his preliminary hearing, and a jury trial was scheduled to begin on

January 24, 2011. However, Vinson entered into a plea agreement with the



____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3124.1 and 2902(a), respectively.
J-A21034-14



Commonwealth immediately before a jury was selected. The trial court



        Prior to sentencing, on May 11, 2011, Vinson filed pro se a motion to

withdraw his plea. In his motion, Vinson asserted his innocence and claimed



                                                                  -3 (unnumbered

pages). A hearing was held December 27, 2012. At the hearing, Vinson

again    claimed   that   he   was   innocent   of   the   relevant    crimes.   N.T.,

12/27/2012, at 19. Vinson complained about his plea counsel and alleged

                                                                      Id. at 3-18, 20.

In response, Assistant District Attorney Matthew Quigg argued that the

Commonwealth would be substantially prejudiced if Vinson were allowed to

withdraw his plea. ADA Quigg provided the following explanation.

                                            where the [Complainant] is in
        this case. I have not had contact with her. The number that I
        had for her I called and it is no longer good. I spoke with a few

        a month prior, was no longer good as of last week when I called
        that telephone number.

              As such I would respectfully request the court -- and I
        want to give Mr. Vinson every benefit that he is entitled to, and
        every right and privilege that he is entitled to under the law. And
        as such I would request that we just postpone this matter 30
        days to see if someone from the County Detectives can track the
        [Complainant] down.

              I feel confident in that 30-day period we would be able to
        do so. If we are able to do so then the Commonwealth would
        have no legal basis to oppose his motion to withdraw his guilty
        plea.


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J-A21034-14



Id. at 34-35.



providing the Commonwealth with an additional 30 days to find the

Complainant. The court scheduled a new hearing for January 28, 2013. On

January 30, 2013, the trial court entered an order indicating that the




February 11, 2013.2

        During this hearing, the Commonwealth presented the testimony of

Detective Michael Shade. Detective Shade testified that he had been

attempting to locate the Complainant since January 2, 2013. N.T.,

2/11/2013, at 4. Detective Shade indicated th

phone was out of service, but that he had been in touch with the

                                  Id. at 4-                 -in-law informed

Detective Shade that the Complainant moved to Florida in 2012. Id. at 5.

Since that time, contact between the Complainant and her family had been




____________________________________________
2
  The trial court indicates in its opinion that, on the day scheduled for the
                                         requested that a conference occur. At
the January 28, 2013 conference, ADA Quigg disclosed to the [trial court]
and Defense Counsel that the Commonwealth was having trouble locating
Complainant, but that a bench warrant had been issued for her on an

at 5.


                                               -3-
J-A21034-14


                          Id.

her family on the social networking website Facebook. Id.

      Detective Shade further explained that he conducted a search for the

Complainant with the assistance of the Pennsylvania Criminal Intelligence

Center. Id. As a result, Detective Shade received a report indicating that the

Complainant had an address in Delray Beach, Florida. Id. at 6. Detective

Shade contacted a police department in Florida. Id. On January 9, 2013,

Detective Shade received an e-mail from a member of the department

stating that the Complainant

Federal Highway in Boynton Beach, Florida, living with a subject named

Ben   Id.

that the Complainant call Detective Shade. Id. Detective Shade received no

response from the Complainant. Id.

      On January 16, 2013, Detective Shade received a phone call from

another Florida police officer, who informed him that the Complainant

                                                               Id. The officer

gave the Complainant

that she give him a call. Id. She did not do so. Id. at 7-8. Detective Shade

also received a new cell phone number for the Complainant, but was unable




                                     -4-
J-A21034-14


to reach the Complainant using that number.3 Id. Detective Shade again

requested that the Florida police department attempt to track down the

Complainant. Id. at 9. However, as of the time of the hearing, the

Complainant had not been found. Id.

        Despite these difficulties, Detective Shade testified that he was

confident that the Complainant would one day be located. Id. at 14. The

trial court asked Detective Shade if there was a way that the Complainant

could be forced to return to Pennsylvania, and Detective Shade indicated

                                                                        Id.

at 15.4

____________________________________________
3
  Detective Shade did relate an incident in which an unidentified woman
answered the phone, but she denied being the Complainant and claimed that
the detective had the wrong number. N.T., 2/11/2013, at 8-9.
4
 We note with disapproval that Vinson was at times left to fend for himself
during the underlying proceedings, despite being represented by counsel.
For example, at the February 11, 2013 hearing, the trial court instructed

You need to have a discussion with your counsel as to what cross-
examina
made to cross-examine Detective Shade himself, while his plea counsel
watched. Vinson expressed his belief that his plea counsel was supposed to
be acting as his advocate, and explained that he had not come prepared to
represent himself. Id. at 11-


       It is well-            the disapproval of hybrid representation is
effective at all levels. Commonwealth v. Cooper, 27 A.3d 994, 1000 n.9
(Pa. 2011).
of Vinson, nor was a hearing held to establish that Vinson wanted to proceed
pro se with standby counsel. See Pa.R.Crim.P. 120(A)(4) ( An attorney who
has been retained or appointed by the court shall continue such
(Footnote Continued Next Page)


                                               -5-
J-A21034-14


        On March 5, 2013, the trial court entered a Memorandum Opinion and



scheduled trial for April 3, 2013. On March 26, 2013, the Commonwealth

sent the trial court an ex parte letter requesting another continuance. The



indefinitely and scheduling a conference for March 28, 2013.



Order to Include Statement Specified in 42 Pa.C.S. §

Application, the Commonwealth requested that the trial court amend its

order of March 5, 2013 so as to permit the Commonwealth to file a petition

for permission to appeal with this Court.5 The trial court denied the

Application on April 4, 2013.




                       _______________________
(Footnote Continued)
representation through direct appeal or until granted leave to withdraw by
the court
appointment of standby counsel). Thus, the trial court was not permitted to
force pro se status on Vinson.
5
  42 Pa.C.S. § 702(b) provides that when a trial court is of the opinion that
                         involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termination of
the matter, it shall so state in such order.
permission to appeal the interlocutory order. Pa.R.A.P. 1311(b). In the event
a party petitions a trial court to include the relevant language in an
interlocutory order, and the trial court refuses, the party may petition this




                                                 -6-
J-A21034-14


Language Prescribed by 42 Pa.C.S. § 702(B), Pursuant to Pa.R.A.P. 1311

(Official Note) and Pa.R.A.P. 15

argued that the trial court erred by refusing to amend its order of March 5,

2013. On June 11, 2013, this Court issued a per curiam order granting the
                                       6
                                           The trial court then ordered the Commonwealth

to file a concise statement of errors complained of appeal pursuant to

Pa.R.A.P. 1925, and the Commonwealth timely complied.

        The Commonwealth now raises the following issue on appeal:

                                                                                   nt to

withdraw his guilty plea to sex crimes, where the [Complainant] moved out-

of-



principles.

               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. An assertion of innocence can
        constitute a fair and just reason for plea withdrawal. In the
        context of a pre-sentence request for plea withdrawal, the term

        of the plea, the Commonwealth's prosecution of its case is in a
        worse position tha[n] it would have been had the trial taken
        place as originally scheduled. Thus, prejudice is about the
        Commonwealth's ability to try its case, not about the personal

____________________________________________
6
  The Commonwealth                                                  reverse the order of
the trial court.                     per curiam




                                                  -7-
J-A21034-14


      inconvenience to complainants unless that inconvenience
      somehow impairs the Commonwealth's prosecution.

            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. An abuse of discretion is not a mere error
      in judgment but, rather, involves bias, ill will, partiality,
      prejudice, manifest unreasonableness, and/or misapplication of
      law. By contrast, a proper exercise of discretion conforms to the
      law and is based on the facts of record.

Commonwealth v. Gordy, 73 A.3d 620, 623-24 (Pa. Super. 2013), appeal

denied, 87 A.3d 318 (Pa. 2014) (citations omitted).

      Instantly, the Commonwealth appears to concede that Vinson has



                        withdrawal of his plea. However, the Commonwealth



                                                                           in a

worse position now at the time of the withdrawal in 2013 than at the time of

the guilty plea in 2011,

producing the Complainant to testify. Id. at 13-15. The Commonwealth

contends that a trial would subject the Complainant to additional trauma and

distress, and that the trial                      the very real danger that a

sexually violent predator will escape justice because he was allowed to

withdraw his plea. Id. at 15.

      In its opinion, the trial court concludes that the Commonwealth was

not substantially prejudiced because



                                    -8-
J-A21034-14




not to have her returned to Pennsylvania by issuing a subpoena or by

                                                                        Trial Court Opinion,

11/21/2013, at 14, 21.7,8

not     demonstrated            a    great     expense   to   bring   Complainant   back   to



                                                                                       inant
____________________________________________
7

in our Rules of Criminal Procedure as follows.

        After an accused has been arrested for any offense, upon
        application of the attorney for the Commonwealth or defense
        counsel, and subject to the provisions of this chapter, a court
        may set bail for any material witness named in the application.
        The application shall be supported by an affidavit setting forth
        adequate cause for the court to conclude that the witness will fail
        to appear when required if not held in custody or released on
        bail. Upon receipt of the application, the court may issue process
        to bring any named witnesses before it for the purpose of
        demanding bail.

Pa.R.Crim.P. 522(A).
8
    The trial court also asserts that the Commonwealth could bring the

against her. Trial Court Opinion, 11/21/2013, at 21. We note that there is
nothing in the certified record confirming that a bench warrant was issued
against the Complainant. While the trial court attached several exhibits to its
opinion indicating that such a warrant was issued, a fact cannot become of
record by virtue of its inclusion in the trial court opinion. Hatalowich v.
Bednarski, 461 A.2d 1292, 1294 (Pa. Super. 1983)                      a court
may not ordinarily take judicial notice in one case of the records of another
case, whether in another court or its own, even though the contents of those
records may be known to the court. Woolard v. Burton, 498 A.2d 445,
448 (Pa. Super. 1985) (quoting Naffah v. City Deposit Bank et al., 13
A.2d 63, 64 (Pa. 1940)).


                                                  -9-
J-A21034-14


still was residing in Pennsylvania at the time Vinson first sought to withdraw

his plea. Id. at 19-20 (quotation marks omitted).

        After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion by permitting Vinson to withdraw

his guilty plea. While the unavailability of a critical witness is an important

factor in assessing substantial prejudice,9 the record here demonstrates that

the Commonwealth has consistently been able to locate the Complainant in

Florida. In a period of about one month, Detective Shade located the

                                                              at the Homing Inn on Federal



                                           N.T., 2/11/2013, at 7. Despite being able to find

the Complainant, the Commonwealth has not taken the steps necessary to

insure her presence at trial. As the trial court explained, the Commonwealth

may issue a subpoena or seek to have the Complainant detained as a

material witness pursuant to Pa.R.Crim.P. 522.

        Thus, despite its protestations to the contrary, the Commonwealth has

                                                 worse position tha[n] it would have been

____________________________________________
9
  See Gordy, 73 A.3d at 628 (finding no substantial prejudice where, inter
alia, there was no evidence that th                      cannot locate, secure
the attendance of, or obtain cooperation from the complainants
Commonwealth v. Kirsch, 930 A.2d 1282, 1287 (Pa. Super. 2007), appeal
denied, 945 A.2d 168 (Pa. 2008) (finding no substantial prejudice because,
inter alia [t]his is not a situation where in the interim a witness has died or
left the jurisdiction, or where key evidence has been inadvertently lost or
destroyed


                                                  - 10 -
J-A21034-14


had the trial taken place as originally scheduled. Gordy, 73 A.3d at 624.

The Commonwealth remains fully capable of prosecuting Vinson, so long as

it exercises reasonable diligence to secure the Complainant for trial.

        Additionally, we agree with the trial court that the Commonwealth has

failed to demonstrate that any significant expense would be incurred by

bringing the Complainant back to Pennsylvania, and that the timing of



guilty plea process.10 Vinson filed the motion to withdraw his guilty plea at

least seven months before Complainant left the jurisdiction, and it does not

appear that Vinson was attempting to withdraw his plea in hopes that the

Complainant would become unavailable. Cf. Commonwealth v. Cole, 564

A.2d 203, 205-06 (Pa. Super. 1989) (affirming denial of pre-sentence

                                                        the Commonwealth argued that

appellant had waited to enter a plea of guilty until it had become clear that

the complaining witness, Ms. Dooley, had appeared to testify against him

and that appellant only sought to withdraw his plea after Ms. Dooley had
                                  11
returned to Georgia.

____________________________________________
10
  As observed by the trial court, Trial Court Opinion, 11/21/2013, at 20,
ADA Quigg indicat

expense of transporting a single witness to Pennsylvania. N.T., 2/11/2013,
at 21-22.
11
  The other cases cited by the Commonwealth where defendants have been
prevented from withdrawing their pleas are readily distinguishable from the
(Footnote Continued Next Page)


                                               - 11 -
J-A21034-14


        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2014




                       _______________________
(Footnote Continued)
instant matter. See Commonwealth v. Ross, 447 A.2d 943 (Pa. 1982)
(affirming denial of pre-                                            which had
been made after the dismissal of numerous key Commonwealth
witnesses in reliance on the plea                           Commonwealth v.
Dicken, 895 A.2d 50, 54 (Pa. Super. 2006), appeal denied, 907 A.2d 1101
(Pa. 2006) (affirming denial of pre-sentence motion to withdraw guilty plea
                                                 witnesses from other state
agencies would have to be flown in from all over the country to
testify                         Commonwealth v. Carelli, 454 A.2d 1020,
1023 n.9 (Pa. Super. 1982) (affirming denial of pre-sentence motion to
withdraw guilty plea where many Commonwealth witnesses who had
been victimized by the appellants were present for trial and had travelled
                  ) (emphasis added); Commonwealth v. Miller, 639 A.2d
815, 819 (Pa. Super. 1994) (affirming denial of pre-sentence motion to
withdraw guilty plea where
find another county in which appellant could be tried by a jury unaffected by
the extensive publicity which had
                                                        ); Commonwealth v.
Ammon, 418 A.2d 744, 748 (Pa. Super. 1980) (affirming denial of pre-
sentence motion to withdraw nolo contendere plea entered midway through
trial after the minor victim testified at length about sexual abuse perpetrated
by Ammon); Commonwealth v. Mosley, 423 A.2d 427, 429 (Pa. Super.,
1980) (reversing grant of pre-sentence motion to withdraw guilty plea where
 the Commonwealth presented uncontroverted psychiatric testimony that
[the victim] may commit suicide under pressure of having to testify at any




                                                 - 12 -
