J-A24036-16

                                   2016 PA Super 234

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

TYLER J. BLANGO

                            Appellant                  No. 3269 EDA 2015


          Appeal from the Judgment of Sentence dated June 12, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007282-2014

BEFORE: BOWES, J., OTT, J., and SOLANO, J.

OPINION BY SOLANO, J.:                             FILED OCTOBER 31, 2016

        Appellant Tyler J. Blango appeals from the judgment of sentence

imposed by the trial court after Appellant pled guilty to third-degree murder,

conspiracy to commit third-degree murder, carrying a firearm without a

license, carrying a firearm on the streets of Philadelphia, and possessing an

instrument of crime.1 On appeal, Appellant asserts that the trial court erred

when it denied his pre-sentence petition to withdraw his guilty plea. After

careful review, we affirm.

        Appellant entered an open guilty plea on August 28, 2014. The trial

court summarized the underlying facts as follows:

              The factual basis proffered by the Commonwealth for
        [Appellant’s] guilty plea, to which [Appellant] agreed,
        established the following: On April 11, 2013, a group of high
        school students associated with the Lansdowne section of
____________________________________________


1
    18 Pa.C.S. §§ 2502(c), 903(c), 6106, 6108, and 907, respectively.
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       Philadelphia, and a group of high school students associated with
       the Wynnefield section of Philadelphia, met at the Tustin
       Playground adjacent to Overbrook High School, in order for one
       student from each school to engage in a fistfight. The group
       included [Appellant] and his co-defendants Rahim Pleasant,
       Jaquan Jordan, and Stanley Postell. While Jordan and another
       student were fighting, Postell made a comment that he had a
       firearm and would use it. Postell and [Appellant] both pulled out
       firearms during the course of the fistfight. Postell fired his
       weapon at least five times, while [Appellant] was attempt[ing] to
       fire his own weapon, which failed to fire. Pleasant and Jordan
       also drew firearms and fired them. During the course of this
       firefight, a spectator to the fight, Bernard Scott, was struck once
       in the chest by a bullet that came from Postell’s firearm. Scott
       was transported to Lankenau Hospital, where he was pronounced
       dead. [Appellant] was struck by a bullet in the hip during the
       firefight. Police ultimately recovered multiple firearms, including
       [Appellant’s] firearm, which was a .38 caliber pistol.

Trial Court Opinion, 12/11/15, at 2 (footnote and citation to notes of

testimony omitted).

       Appellant was charged with the aforementioned offenses.        As noted

above, Appellant entered a guilty plea on August 28, 2014. As part of his

plea agreement, Appellant agreed to cooperate with the Commonwealth by

testifying against two of his co-defendants, Jaquan Jordan and Stanley

Postell.   Id. at 4.2     In addition, Appellant agreed to provide information

regarding an unrelated shooting involving an individual named Glenn Long,

who was also known as “Big Dog” or “Glenn Mole.” N.T., 8/28/14, at 31.

____________________________________________


2
 On July 11, 2014, the Commonwealth filed a Notice of Joint Trial in which it
expressed the intention to try Appellant with co-defendants Postell, Jordan,
and Rahim Pleasant, pursuant to Rule 582 of the Rules of Criminal
Procedure.



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      Appellant was called to testify at Long’s trial on April 9, 2015, but

repudiated the information he had provided implicating Long, and then

threatened Long as he left the witness stand. N.T., 6/12/15, at 30-31. As a

result, the Commonwealth presented the trial court with a sentencing

memorandum in which it requested that Appellant be sentenced to 35–70

years’ incarceration. Id. at 30, 35. A day later, on May 15, 2015, Appellant

filed a pre-sentence motion to withdraw his guilty plea. On June 12, 2015,

the trial court denied Appellant’s motion and sentenced him to an aggregate

24–48 years’ incarceration.    Appellant filed a post-sentence motion for

reconsideration of sentence on June 17, 2015, and the trial court denied that

motion on October 1, 2015. Appellant then filed this timely appeal.

      On appeal, Appellant presents a single issue for our review:

      Whether the [trial] court erred when it denied [Appellant’s]
      petition to withdraw guilty plea?

Appellant’s Brief at 5.

      Preliminarily, we recognize that 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).

The Supreme Court of Pennsylvania recently clarified the standard of review

for considering a trial court’s decision regarding a defendant’s pre-sentence

motion to withdraw a guilty plea:

         [T]rial courts have discretion in determining whether a
         withdrawal request will be granted; such discretion is to be

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          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.

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1285, 1291–92 (Pa.

2015) (holding there is no per se rule regarding pre-sentence request to

withdraw a plea, and bare assertion of innocence is not a sufficient reason to

require a court to grant such request).3         We will disturb a trial court’s

decision on a request to withdraw a guilty plea only if we conclude that the

trial court abused its discretion. Commonwealth v. Gordy, 73 A.3d 620,

624 (Pa. Super. 2013).

       Within the argument section of his brief, Appellant contends that the

trial court erred in denying his request to withdraw his plea because he is

“actually innocent,” and the Commonwealth breached the terms of the

“cooperation agreement.” Appellant’s Brief at 9-10. Appellant further states

that the Commonwealth “breached the terms of the cooperation agreement

by questioning the Appellant without counsel and contrary to an oral

agreement.” Id. at 10.

       First, we note that Appellant fails to expand upon, detail, cite to the

record, or otherwise develop his general claim of innocence and allegation of

____________________________________________


3
  In contrast, after the court has imposed a sentence, a defendant may
withdraw his guilty plea “only where necessary to correct a manifest
injustice.” Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super.
2014).




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a   breached     agreement,    causing     these   claims   to   be   waived.

Commonwealth v. Bavusa, 832 A.2d 1042, 1052 (Pa. 2003) (reiterating

that claims for which arguments are undeveloped are waived). We further

note that, apart from waiver, both Appellant and the Commonwealth

reference Carrasquillo, in which our Supreme Court explained that a

“defendant’s innocence must be at least plausible to demonstrate, in and of

itself, a fair and just reason for presentence withdrawal of a plea.” 115 A.3d

at 1292.       The Commonwealth persuasively rebuts Appellant’s broad

assertion of innocence as follows:

            [Appellant’s] assertion of innocence was implausible. At
      the time he made it, he had already testified against his former
      co-defendants, Stanley Postell and Jaquan Jordan (N.T. 9/18/14
      at 14-108). During this testimony, [Appellant] admitted that he
      was the first one to pull the trigger.

            The timing of [Appellant’s] motion adds to its
      implausibility. On April 9, 2015, pursuant to his cooperation
      agreement, [Appellant] was called to testify against Glenn Long.
      During testimony, he recanted his written statement to police
      implicating Long, claiming that it was fabricated. As he left the
      witness stand, he threatened Long, saying “When I touch down,
      you better strap up” (N.T. 6/12/15 at 27-35; Commonwealth’s
      Sentencing Memorandum at 2). The Commonwealth responded
      to this breach of the cooperation agreement by submitting a
      sentencing memorandum requesting a sentence of thirty-five to
      seventy years’ incarceration (See Commonwealth’s Sentencing
      Memorandum, p. 4).        On May 15, 2015, one day later,
      [Appellant] filed a motion to withdraw his guilty plea. Clearly,
      [Appellant] had not suddenly realized his innocence on that date,
      but was motivated by the prospect of a lengthy prison sentence.

           [Appellant’s] assertion of innocence was thus an attempt
      to manipulate the system. [Commonwealth v.] Tennison,
      969 A.2d [572,] 573 [(Pa. Super. 2009)] (assertion of innocence



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J-A24036-16


        is not “fair and just” reason for withdrawal when it is founded
        upon a desire to manipulate the system).

Commonwealth’s Brief at 8-9. We agree. We conclude that Appellant did

not make a plausible claim of innocence and that the trial court did not

abuse its discretion in declining to permit withdrawal of Appellant’s guilty

plea on that ground.

        With respect to Appellant’s claim that the Commonwealth breached the

cooperation agreement, we have reviewed the record, including Appellant’s

written plea colloquy and the notes of testimony from Appellant’s plea

hearing. During the hearing, the trial court addressed Appellant as follows:

        THE COURT:          Now,      aside    from    the   fact   that  the
                            Commonwealth in exchange for your guilty
                            plea and in accordance with the memorandum
                            of agreement[4] that was signed by you, your
                            attorney and the district attorney on August
                            26th, 2014, two days ago; aside from the
                            understanding of everything that is set forth in
                            that agreement – and I expect the DA will go
                            into a little bit more detail with you about what
                            you have to do.           But there are certain
                            requirements that you have to comply with
                            such     as    testifying   truthfully  and   not
                            withholding any information. In exchange, the
                            Commonwealth has agreed to you plea[ding]
                            to these reduced charges rather than face the
                            charge of first degree murder.

                            Do you understand that?

        [APPELLANT]:        Yes.


____________________________________________


4
    The memorandum of agreement is not in the record.



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J-A24036-16



N.T., 8/28/14, at 16-17.

     The Commonwealth subsequently addressed Appellant:

     [COMMONWEALTH]:       Do you remember reviewing and signing
                           a memorandum of agreement just two
                           days ago on August 26, 2014?

     [APPELLANT]:          Yes.

     [COMMONWEALTH]:       And where was that done?

     [APPELLANT]:          In your office.

     [COMMONWEALTH]:       Was your attorney present when that
                           happened?

     [APPELLANT]:          Yes.

     [COMMONWEALTH]:       Did you in fact read over the four-page
                           memorandum agreement?

     [APPELLANT]:          Yes.

     [COMMONWEALTH]:       And are those your initials at the bottom
                           of each page?

     [APPELLANT]:          Yes.

     [COMMONWEALTH]:       Is that your signature at the end?

     [APPELLANT]:          Yes.

     [COMMONWEALTH]:       Just prior to signing the memorandum
                           agreement, do you remember providing
                           two statements?         One statement
                           regarding the incident, the shooting on
                           Tustin Playground?

     [APPELLANT]:          Yes.

     [COMMONWEALTH]:       And another statement regarding a
                           defendant who goes by the name of Big
                           Dog, Glenn Mole?

     [APPELLANT]:          Yes.




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J-A24036-16


      [COMMONWEALTH]:        And did you have an opportunity to
                             review each of those statements?

      [APPELLANT]:           Yes.

      [COMMONWEALTH]:        And are both of those statements signed
                             by you?

      [APPELLANT]:           Yes.

      [COMMONWEALTH]:        Do you have any corrections or changes
                             you would like to make to either of
                             those?

      [APPELLANT]:           No.

N.T., 8/28/14, at 30-32.

      Thereafter, Appellant verbally entered his guilty plea on the record,

and the trial court indicated that sentencing would be deferred.         The

Commonwealth noted that, with regard to Appellant’s co-defendants, the

“trial date is September 15th.” N.T., 8/28/14, at 34. Relative to a date for

Appellant’s sentencing, the Commonwealth stated, “If we need to put a date

in, what I would suggest is we put in September 29th. . . . The trial [of the

co-defendants] should be over and that way we don’t have any issues.” Id.

The trial court responded, “[N]ow sentencing is scheduled for September

29th. But understanding that on that date sentencing may not take place.”

Id.

      Based on the foregoing, we find no merit to Appellant’s broad and

unsubstantiated claim that the Commonwealth breached a cooperation

agreement. Appellant communicated to the Commonwealth that at the trial

of Long he would testify in accordance with his pretrial statement to police.



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J-A24036-16



Instead, he recanted that pretrial statement and threatened Long as he left

the witness stand.   As a result, counsel for the Commonwealth stated the

following at Appellant’s sentencing:

            It’s [] clear to me that [Appellant,] as demonstrated by his
      behavior on the date of the murder, as demonstrated up to the
      day of that murder and demonstrated by his behavior up until
      last week, speaks in one direction and one direction only, that he
      is a highly intelligent manipulative dangerous violent person.
      There can be no question about that, none.

      ...

      He sat down in my office with my detectives and his attorney,
      and I explained to him how I felt personally and how I felt
      professionally, and then he saw the memorandum that I wrote
      asking for 35 to 70 years.

            Even armed with all that understanding so vividly of what
      the consequences are, he was called to testify and instead of
      trying to do the right thing, instead of trying to do his best to
      undo the damage that he continually causes, he got up on the
      stand and says, no, I lied, screw you guys, I’m getting 35 to 70,
      I don’t give a damn. I quite frankly, Judge, was shocked. I was
      shocked when he did what he did in court.

      ...

            He saw an opportunity to cut Glen Long loose and thinks
      he would be out shortly after so that he can go out and do
      whatever he wants to do on the street. He was less interested in
      the justice system [than] taking out his personal revenge on
      Glen Long.

            The compunction, the sheer audacity in open court, this is
      not somebody sneaking a letter, somebody sending a message.
      He walked out of that courtroom on his way into the wall and in
      open court and said, when I touch down, you better strap up.

            Judge, that’s appalling. Of all the violence and all the
      nasty and dirty things that the Court has seen, we have all
      experienced . . . I have never seen or heard something like that
      happen, certainly not with a person who had every incentive,
      who at every stage of his life had someone pulling for him.

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J-A24036-16



N.T., 6/12/15, at 28, 30-31. Based on the record before us, the trial court

could conclude that it was Appellant, and not the Commonwealth, who

breached the cooperation agreement.

     Finally, we turn to Appellant’s claim that withdrawal of his guilty plea

would not prejudice the Commonwealth. Appellant’s Brief at 7-11. Even if

there is a “‘fair and just reason’ to permit withdrawal of a guilty plea,

withdrawal    should   not   be   permitted    if   “the   prosecution   has   been

‘substantially prejudiced.’” Commonwealth v. Forbes, 299 A.2d 268, 271

(Pa. 1973). It is settled law that “prejudice,” in the withdrawal of a guilty

plea context, requires 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 taken place as scheduled. Commonwealth v. Kirsch,

930 A.2d 1282, 1286 (Pa. Super. 2007). For example, substantial prejudice

exists if a defendant obtains “a full preview of the Commonwealth’s evidence

before deciding upon [his] trial strategy.” Commonwealth v. Prendes, 97

A.3d 337, 353 (Pa. Super. 2014).

     Here, the trial court explained that it denied Appellant’s request to

withdraw his guilty plea because there would be such prejudice. Trial Court

Opinion, 12/11/15, at 4. The Commonwealth echoes the trial court, stating

that Appellant “was able to preview the entirety of the Commonwealth’s

case.”   Commonwealth’s Brief at 11.          The Commonwealth also observes

that, “if allowed to withdraw his plea, [Appellant] would have effectively

obtained extrajudicial severance from his co-defendants.” Id. at 9.

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      Appellant concedes that his two co-defendants have already been

tried, but responds: “[T]he Commonwealth has the duty to provide the

Appellant with all of the evidence that it wishes to present against him prior

to trial. The Appellant fails to understand how the Commonwealth would be

prejudiced since it has the burden of proof to prove each and every element

of each crime beyond a reasonable doubt.” Appellant’s Brief at 10-11.

      Our review once again reveals no abuse of discretion by the trial court.

In determining that the Commonwealth would be prejudiced by the

withdrawal of Appellant’s guilty plea, the trial court explained:

      The issue for me is whether or not there is substantial prejudice.

            I looked at the [parties’] briefs here on both sides of this
      equation, and I think unquestionably there is substantial
      prejudice to the Commonwealth based on the facts as they
      occurred here. . . .

           Some of the things I agree with defense counsel are not
      determinative, but taking everything together, I think the
      Commonwealth is overwhelmingly prejudiced.

            This is a situation where you have a case going forward.
      Everybody’s joined and properly tried together. [Appellant] cuts
      a deal, cooperates, testifies and attempts to withdraw after the
      entire case has been tried after viewing the Commonwealth’s
      entire case requiring the Commonwealth to place the entire case
      before a different jury once again.

            I mean, for one thing, that would be a way to get a
      severance.   You plead guilty and then afterwards move to
      withdraw your plea after the trial is over.

           As the Commonwealth points out, the situation has
      changed with several of their witnesses. Wilmer Colon has an
      open murder case, has now been convicted of third degree
      murder.



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J-A24036-16


           Antoine Gardener has open theft cases. He was convicted
     of felony theft. Now he’s in custody. Rahim Pleasant was a
     cooperating witness with no agreement as to sentence and had
     an open case. He’s now been sentenced. Stanley Postell has
     been convicted of first-degree murder. That’s over, and Mr.
     Jordan’s trial is over. Witness Basil Harrison had an open
     robbery. This is in the Commonwealth’s memorandum.

            Those are substantial changes, and even setting all that
     aside, the mere fact that [Appellant] got himself out of the joint
     trial, now gets a chance to view the Commonwealth’s entire case
     and then wishes to withdraw his plea and go forward because
     he’s unhappy with a sentencing recommendation of the
     Commonwealth after he reneged on his plea agreement, I have
     – I have no doubt – at least it’s my firm belief that that is clear
     substantial prejudice, and for that reason, [Appellant’s] motion
     to withdraw the guilty plea is denied.

N.T., 6/12/15, at 3-5.

     Mindful of the trial court’s reasoning, we once again reference Kirsch,

supra, in which we stated:

     Our research reveals that there exists little case law explaining
     what constitutes prejudice in the withdrawal of a guilty plea
     context. Nevertheless, despite the dearth of caselaw, it would
     seem that prejudice 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
     taken place as scheduled.         [FN5:     Along these lines, in
     Commonwealth v. Campbell, 309 Pa.Super. 214, 455 A.2d
     126, 128 (1983), we described the prejudice standard as being
     satisfied “where the prosecution substantially relies upon the
     plea to its detriment.”] This follows from the fact that the
     consequence of granting the motion is to put the parties back in
     the pre-trial 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.

930 A.2d at 1286.



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J-A24036-16



      In applying Kirsch, we agree that “the consequence of granting the

[withdrawal] motion is to put the parties back in the pre-trial stage of

proceedings.”   930 A.2d at 1286.      Here, however, if the trial court had

permitted Appellant to withdraw his plea, the parties could not have been

returned to the pre-trial stage of proceedings because, among other

reasons, Appellant had testified at two of his co-defendants’ trials and

“previewed” the Commonwealth’s case.         In addition, Appellant’s two co-

defendants (Jaquan Jordan and Stanley Postell) had already been convicted

and sentenced, while Appellant’s third co-defendant (Rahim Pleasant) had

entered a plea and had been sentenced.

      Of further significance is the fact that allowance of the withdrawal of

the guilty plea would have resulted in Appellant gaining “extrajudicial

severance from his co-defendants.”     Commonwealth Brief at 9; see also

N.T., 6/12/15, at 4.   The trial court expressly noted that Appellant “never

applied” for a severance, “which the Court would not have granted.” Trial

Court Opinion, 12/11/15, at 4.    Given this scenario, we find no abuse of

discretion by the trial court in determining that the Commonwealth would

have been substantially prejudiced by the withdrawal of Appellant’s plea.

      Accordingly, after thorough review, we conclude that the trial court did

not abuse its discretion when it denied Appellant’s pre-sentence motion to

withdraw his guilty plea.

      Judgment of sentence affirmed.




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J-A24036-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2016




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