J-S10036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    CHRISTOPHER MICHAEL GUISEPPE               :
                                               :
                       Appellant               :       No. 1416 EDA 2018

      Appeal from the Judgment of Sentence Entered December 6, 2017
               In the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0002010-2016,
             CP-15-CR-0002011-2016, CP-15-CR-0002016-2016


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                          FILED MARCH 22, 2019

       Appellant, Christopher Michael Guiseppe, appeals from the judgment of

sentence entered in the Chester County Court of Common Pleas, following his

open guilty plea to involuntary deviate sexual intercourse (“IDSI”) with a child,

indecent assault of a person less than 13 years of age, aggravated indecent

assault of a child, obscene or other sexual materials—dissemination to a

minor, corruption of minors, and endangering the welfare of children

(“EWOC”).1 We affirm.

       In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case.         Therefore, we have no need to


____________________________________________


118 Pa.C.S.A. §§ 3123(b), 3126(a)(7), 3125(b), 5903(c)(1), 6301(a)(1)(ii),
and 4304(a)(1), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10036-19


restate them. Procedurally we add, Appellant entered an open guilty plea on

January 19, 2017, to seven counts of indecent assault of a person less than

13 years of age, three counts each of IDSI with a child, obscene or other

sexual materials—dissemination to a minor, corruption of minors, and EWOC,

and one count of aggravated indecent assault of a child. The court sentenced

Appellant on December 6, 2017, to an aggregate term of fifty-five (55) to one

hundred ten (110) years’ incarceration, plus five (5) years’ probation. The

court also notified Appellant of his requirement to register and report for life

as a Tier III sex offender under the Sexual Offender Registration and

Notification Act (“SORNA”). Subsequently, the trial court denied Appellant’s

post-sentence motion in an order dated March 26, 2018, and mailed to the

parties on March 29, 2018.

      Appellant raises one issue for our review:

         WHETHER THE TRIAL COURT ERRED IN DENYING
         [APPELLANT]’S MOTION TO WITHDRAW HIS GUILTY PLEA
         PRIOR TO BEING SENTENCED[?]

(Appellant’s Brief at 4).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Phyllis R.

Streitel, we conclude Appellant’s issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed June 26, 2018, at 10-24) (finding: testimony

at hearing on Appellant’s motion to withdraw his guilty plea established


                                      -2-
J-S10036-19


credibly that video recording of Appellant’s police interview accurately

reflected his live interview with police, where DVDs containing recording of

interview were neither altered nor alterable; Appellant participated in

interview and knew what he had told police; further, Appellant’s allegation of

innocence was implausible; in police interview, Appellant confessed to crimes

and gave detailed accounts of his abuse of Victims; in individual interviews

with police, Victims corroborated Appellant’s accounts).2 The record supports

the court’s decision. Accordingly, we affirm based on the trial court opinion.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/19




____________________________________________


2 We depart from the trial court’s analysis to the extent it appears to address
portions of Appellant’s challenge on the basis of ineffective assistance of
counsel. Even if Appellant raised his claims of plea counsel’s ineffectiveness
in the trial court and the court addressed them in its opinion, Appellant did
not make a knowing, intelligent, and voluntary waiver of review per the Post
Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. Absent
Appellant’s waiver, we refuse to entertain his claims under the rubric of
ineffective assistance of counsel on direct appeal and defer them instead for
review in a timely PCRA petition. See Commonwealth v. Holmes, 621 Pa.
595, 598-99, 79 A.3d 562, 563-64 (2013); Commonwealth v. Grant, 572
Pa. 48, 813 A.2d 726 (2002) and its progeny.

                                           -3-
                                                                       Circulated 03/08/2019 01:54 PM




· COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS

                                               : CHESTER COUNTY, PENNSYLVANIA
        vs
                                               : CRIMINAL ACTION
                                                                                         r·-.)
 CHRISTOPHER MICHAEL GUISEPPE                    NOS. 2010-16; 2011-16:'.-2016-1'.&




                            STATEMENT OF THE COURT                                                   ':, j


                                                                                              ,,..
                                                                             .••..•• J
                                                                                         (.
                                                                                         U'I

       On April 26, 2018, Defendant filed a timely appeal following the court's denial of

Defendant's Post Sentence Motion on March 26, 2018. An appeal having been taken,

pursuant to Pa.R.A.P. 1925(a), the following statement is submitted.

       Defendant was arrested following acts that occurred between January 2014 and

April 2016. On docket number 2010-16, Defendant was charged with thirty-three counts

of criminal conduct against victim A.H., who was ten years old at the time the criminal

complaint was issued. Defendant was charged with the following: seven counts of

involuntary deviate sexual intercourse, in violation of 18 Pa.C.S.A. § 3123(b); seven

counts of aggravated indecent assault, in violation of 18 Pa.C.S.A. § 3125(b); seven

counts of aggravated indecent assault, in violation of 18 Pa.C.S.A. § 3125(a)(7); eight

counts of indecent assault, in violation of 18 Pa.C.S.A. § 3126(a)(7); corruption of minors,

in violation of 18 Pa.C.S.A. § 6301 (a)(1 )(ii); endangering welfare of children, in violation of

18 Pa.C.S.A. § 4304(a)(1); and two counts of obscene and other sexual materials and

performances, in violation of 18 Pa.C.S.A. § 5903(c)(1).

       On docket number 2011-16, Defendant was charged with twelve counts of criminal

conduct against victim S.G., who was nine years old at the time the criminal complaint
was issued. Defendant was charged with the following: five counts of indecent assault,

in violation of 18 Pa.C.S.A. § 3126(a)(7); five counts of obscene and other sexual

materials and performances, in violation of 18 Pa.C.S.,�. § 5903(c)(1); corruption of

minors, in violation of 18 Pa.C.S.A. § 6301(a)(1)(ii); and endangering welfare of children,

in violation of 18 Pa.C.S.A. § 4304(a)(1).

       On docket number 2016-16, Defendant was charged with ten counts of criminal

conduct against victim B.G., who was six years old at the time the criminal complaint was

issued. Defendant was charged with the following: involuntary deviate sexual

intercourse, in violation of 18 Pa.C.S.A. § 3123(a)(b); two counts of aggravated indecent

assault, in violation of 18 Pa.C.S.A. § 3125(b); two counts of aggravated indecent assault,

in violation of 18 Pa.C.S.A. § 3125(a)(7); incest, in violation of 18 Pa.C.S.A. § 4302; two

counts of indecent assault, in violation of 18 Pa.C.S.A. § 3126(a)(7); corruption of minors,

in violation of 18 Pa.C.S.A. § 6301(a)(1)(ii); and endangering welfare of children, in

violation of 18 Pa.C.S.A. § 4304(a)(1 ).

       Following pre-trial motions, hearings and Orders, Defendant entered into an open

guilty plea on January 19, 2017. At the guilty plea hearing, the facts in support of the

guilty plea were set forth as follows:

       MS. KING: Your Honor, I'll startwith information docketed to 2010
       of 2016, and his involves the victim A.H. Between January, 2014
       and April, 2016 the defendant sexually assaulted A.H.
                                           '. She's a child less than 13
       years of age ·

               A.H. was between the ages of five and eight when the
       assaults occurred. The defendant had dated A.H.'s mother and
       after they broke up he continued to watch A.H. on weekends. On
       multiple occasions, Your Honor, the defendant engaged in deviate
       sexual intercourse in that the defendant put his penis in A.H.'s




                                             2
 mouth and also licked her vagina and anus with his fingers and a
 Q-tip looking for pinworms.

          On multiple occasions the defendant touched A.H.'s vagina
  and buttocks with his hands. The defendant ejaculated on the
  floor, bed or on to A.H. A.H. was told by the defendant that this
  was called baby juice. The defendant showed pornographic videos
  of adult women and men engaged in sexual acts to A.H., as well as
  to another victim S.G. who is docketed on information 2011 of
  2016. The videos depicted men ejaculating on to the faces of
  women.
          The defendant is over 18. The victim A.H. is under 18, and
  these actions were a course of conduct that would corrupt or tend
  to corrupt the morals of A.H. During the times that the defendant
  committed these acts the defendant knowingly endangered the
  welfare of A.H. by violating a duty of care, protection or support.
          The victim, A.H., told Detective Davis from the Chester
  County Detectives that the defendant, who she called Crispy liked
  her best because she was compliant and did what he told her to
  do.
          On May 51h, 2016 the defendant was interviewed by
  Detective Davis and Sergeant Cusick from Caln Township. The
  defendant described A.H. as his, quote, "go-to-child", end quote
  because she was compliant and did what she was told. The
  defendant stated A.H. was the most sexual of the children.
          During that time the defendant would sleep naked with A.H.,
 and he admitted on multiple occasions A.H. sucked on his penis.
 The defendant admitted that he ejaculated when she did this. He
 further related he ejaculated on A.H. and that he called his semen
 baby juice.
         The defendant stated that on at least three occasions he
 would, quote, "hump", end quote, A.H. by placing his penis through
 her thighs and butt crack from a position behind A.H. while she was
 lying in the bed sideways.
         When the defendant placed his penis between her legs, the
tip of his penis protruded out the front of her body. He would then
 rub his penis against her bare thighs until he, quote, "blew a huge
 load", end quote.
         The defendant admitted that A.H. had sat on his face while
she was sleeping. The defendant told Detective Davis and
Sergeant Cusick that he would touch A.H.'s vagina and used a Q-
tip in her vagina and anus. This was not done, Your Honor, for
medical purposes. Rather, it was an excuse to have the girls
acquiesce and allow him to touch her vagina and anus.
         Defendant said that he told A.H. that when he put his finger
in her vagina that this is digital penetration or fingering, and he



                                 3
wanted her to know what it felt like and that he moved his finger
 around her vagina, quote, "pretty violently". He described A.H.'s
vagina as "a tiny little seal", end quote.
       He said he knew A.H. viewed pornography and he related
 he began assauiting A.H. when she was in kindergarten.
       That's for information docketed to 2010 of 2016.
       Do you want me to go to 2011 of 2016?
       THE COURT: What were the ages that A.H. was
assaulted? That's not in this.
       MS. KING: A.H. was between the ages of five and eight.
       THE COURT: Okay. The next one on here is 2011 of 2016,
but you can go forward with whichever one you want.
       MS. KING: Your Honor, I'll proceed with docketed
information 2011 of 2016, and this involves the victim S.G.
       Between January, 2014 and April, 2016, the defendant
sexually assaulted S.G.
She's a child less than 13 years of age.

         S.G. was seven to nine years old at the time.

         S.G. is the defendant's biological daughter. S.G. and her
 sister B.G. who is a victim docketed on information 2016 of 2016
would stay with the defendant on weekends pursuant to a custody
 arrangement.
        On at least five occasions the defendant would put his penis
between S.G.'s legs and rock back and forth while she was in bed
with the defendant at his home. He had a bedroom in the
basement of his parents' house.
        The defendant showed S.G. and also previously mentioned
victim, A.H., docketed at information 2010 of 2016, pornographic
videos of adult women and men engaged in sexual acts on at least
five occasions. The videos depicted men ejaculating on to the
faces of women.
        The defendant is over 18. The victim S.G. is under 18. And
these actions were a course of conduct and corrupted or tended to
corrupt the morals of S.G.
        During the times that he committed these acts, the
defendant knowingly endangered the welfare of S.G. by violating a
duty of care, protection or support.
        On May 5, 2016, the defendant told Sergeant Cusick and
Detective Davis of the Chester County Detectives he slept naked in
his bed with S.G. and that his erect penis would come out of his
boxers. The defendant stated he would place his penis between
S.G.'s thighs while lying behind her in bed. The top of his penis
would protrude between her legs. He admitted he would grind back
and forth moving his penis between her legs. He admitted to



                                 4
       ejaculating when he did those things, describing it as blowing a.
       huge load. He stated that he knew S.G. had viewed pornography.
              Going forward to information docketed at 2016 of 2016, this
       involves the victim B.G. Between January, 2014 to April, 2016 the
       defendant sexually assaulted B.G.
                   She's a child less than 13 years of aqe,


              B.G. is the youngest of the victims. She is also the
      defendant's biological daughter who at the time was between the
      ages of five and six when she was sexually assaulted by the
      defendant. On at least one occasion the defendant engaged in
      deviate sexual intercourse when he put his penis into B.G.'s mouth.
              Your Honor, sexual intercourse includes intercourse by
      mouth or by anus, and the defendant in putting his penis in B.G.'s
      mouth engaged in incest. On at least four occasions the defendant
      penetrated her vagina and anus with his fingers under the ruse he
      was looking for pinworms. He touched her anus and vagina with
      his fingers on at least two occasions.
              The defendant is over 18, the victim, S.G., is under 18 and
      these actions were a course of conduct and corrupted or tended to
      corrupt the morals of B.G. I said S.G. earlier, I'm sorry, Your
      Honor. It should have been B.G.
              During the times he committed these acts, the defendant
      knowingly endangered her welfare by violating a duty of care,
      protection or support.
              During the defendant's interview with Detective Davis and
      Sergeant Cusick on May 5, 2016, the defendant admitted that he
      woke up and that his hand was down B.G.'s underpants. He stated
      it was, quote, "on her cllt moving around" and he described her,
      quote, "clit was being large like her mother's." He admitted that he
      did not take his hand out of her underwear for two minutes.
              Additionally, defendant admitted to waking up to B.G.
      sucking on the head of his penis. He stated he was fully aroused
      and his penis was erect. He stated that on another occasion he
      was sitting on a chair and his penis came out of his boxers and was
      pressed up against B.G.'s vaginal area. He told Detective Davis
      and Sergeant Cusick that he got a quote semi chummy, referring to
      an erection, and B.G. was grinding back and forth.
              He described B.G. as being a sexual child and that B.G.
      would grab his penis while showering.
              He admitted his penis had touched her buttocks. He stated
      that B.G. tried to get the defendant to put his penis in her vagina a
      couple of times. He also admitted that he woke up humping B.G.

(N.T., 1/19/17, pgs. 9-13 and 14-18).



                                        5
      Thereafter, the following exchange took place between the court and Defendant:

             THE COURT: ... Did you hear the facts recited on the
      record by Miss King, the Assistant D.A.?
             THE DEFENDANT: Yes, Your Honor.
             THE COURT: And did you see the facts as typed out and
      attached to the plea agreement that's before me?
             THE DEFENDANT: Yes, Your Honor.
             THE COURT: And do you agree with everything that Miss
      King said and everything that's written in the written facts, is that
      what you did?
             THE DEFENDANT: Yes, Your Honor.
             THE COURT: Have you had enough time to discuss your
      case, the facts, the law, and any possible defenses with your
      lawyer?
             THE DEFENDANT: Yes, Your Honor.
             THE COURT: Are you satisfied with her advice and
      representation?
             THE DEFENDANT: Yes.

(N.T., 1/19/17, pgs. 24-25).

       In addition to the facts set forth and agreed to by Defendant on the record in

support of the plea, the following facts were set forth in the Guilty Plea Colloquy form that

Defendant executed:

       AH 2010-016

       Between January 2014-April 2016, the defendant, sexually
       assaulted AH         . a child less than 13 years of age"

                         The Defendant dated AH's mother and after they
       broke up, the Defendant continued to watch AH and her younger
       sister, in that (AH and her sister) they would spend the night or
       weekends with the Defendant. On at least 7 occasions the
       Defendant engaged in deviate sexual intercourse, in that the
       Defendant put his penis in AH's mouth and licked her vagina. On
       at least 7 occasions, the Defendant penetrated AH's vagina and
       anus with his fingers (and q-tip) under the pretext that he was
       looking for pinworms. On at least 7 occasions the defendant
       touched AH's vagina, buttocks with his hands. The Defendant
       ejaculated on the floor, bed or on AH and AH was told by the
       Defendant that it was babyjuice. The Defendant also showed
       pornographic videos of adult women and men engaged in sexual



                                           6
acts to AH and SG (another victim who was 10 years of age -
docketed on information 2011-2016). The videos depicted men
ejaculating onto the faces of women. The Defendant is over 18,
the victim AH is under 18 and these actions were a course of
conduct and corrupted or tended the corrupt the morals of AH.
During the times that he committed these acts, the defendant
knowingly endangered the welfare of AH by violating a duty of care,
protection, or support. AH told Defective Jerry Davis that the
defendant, whom she called Crispy, liked her best because she
was compliant and did what the defendant told her to do.

 On May 5, 2016, the Defendant was interviewed by Det Jerry Davis
and Sgt Cusick. The Defendant described AH as his "go to child"
 because she was compliant and did what she was told. During that
time, the Defendant would sleep naked with AH. The Defendant
admitted that on multiple occasions, AH sucked on his penis. He
further related that he ejaculated on AH and called his semen,
"baby juice." The Defendant stated that on at least three occasions
he would "hump" AH by placing his naked penis through her thighs
and butt crack from a position behind AH while she was lying in the
bed sideways. When Guiseppe placed his penis between her legs,
the tip of his penis protruded out the front of her body. He would
then rub his penis against her bare thighs until he "blew a huge
load." The defendant admitted that AH sat on his face while he
was sleeping. The defendant told Det Davis and Sgt Cusick that
he would touch AH's vagina and used a qtip to look for pinworms in
her vagina and anus. This was not done for medical purposes, but
rather provided an excuse to have the girls acquiesce and allow
him to touch her vagina and anus. The defendant said that he told
AH that when he put his finger in her vagina, that is what digital
penetration (fingering) felt like and that he moved his finger around
her "pretty violently" when it was inside AH's vagina. He described
AH's vaginas as a "tiny, little seal." He said he knew AH viewed
pornography. He related that he began assaulting AH when she
was in kindergarten.

SG 2011-2016 - Between dates of January 2014 -April 2016


SG          .        SG who was 9-10 years old at the time of the
sexual assaults is the Defendant's biological daughter. SG and her
sister BG (docketed on information 2016-2016) would stay with the
Defendant on weekends pursuant to a custody arrangement.
Between January 2014 -April 2016, on at least 5 occasions, the
defendant would put his penis between SG's legs and rock back
and forth while she was in the bed with the Defendant at his home



                                 7
(a bedroom in the basement of his parents' house q
                                       -    ·     '. The defendant
showed SG and previously mentioned AH (docketed at information
2010-2016), pornographic videos of adult women and men
engaged in sexual acts on at least 5 occasions. The videos
depicted men ejaculating onto the faces of women. The Defendant
is over 18, the victim SG is under 18 and these actions were a
course of conduct and corrupted or tended the corrupt the morals
of SG. During the times that he committed these acts, the
defendant knowingly endangered the welfare of SG by violating a
duty of care, protection, or support.

On May 5, 2016, Defendant told Sgt. Cusick and Det Davis, CCD, .
that he slept naked in his bed with SG and that his erect penis
would come out of his boxers. He stated that he would place his
penis betvveen SG's thighs while lying behind her in bed. The top
of his penis would protrude between her legs. He admitted he
would grind back and forth, moving his penis between her legs. He
admitted to ejaculating when he did those things. He stated that he
knew SG had viewed pornography.

BG - 2016-2016. Between January 2014 -April 2016.



 BG is the youngest of the three victims and is also the Defendant's
 biological daughter who was between the ages of 6-8 when she
was sexually assaulted by the Defendant. On at least one
occasion the Defendant engaged in deviate sexual intercourse
when he put his penis into BG's mouth. Sexual intercourse
 includes intercourse by mouth or by anus - and the defendant in
putting his penis in BG's mouth engaged in incest. On at least 4
occasions, the Defendant penetrated her vagina and anus with his
fingers under the ruse that he was looking for pinworms.
Defendant touched the victim's anus and vagina with his fingers on
at least two occasions. The Defendant is over 18, the victim [BGJ
is under 18 and these actions were a course of conduct and
corrupted or tended the corrupt the morals of [BGJ. During the
times that he committed these acts, the defendant knowingly
endangered the welfare of [BG] by violating a duty of care,
protection, or support.

During the Defendant's interview with Det Davis and Sgt Cusick,
the defendant admitted that he woke up and his hand was down
BG's underpants, "on her clit" moving around and he described her
"clit as being large like her mothers. He admitted that he did not



                                 8
       take his hand out of her underwear for 2 minutes. Additionaliy,
       Defendant admitted to waking up to BG sucking on the head of his
       penis, that he was fully aroused and his penis was erect. He stated
       that he on another occasion he was sitting on a chair and his pen_is
       came out of his boxers, and was pressed up against BG's vaginal
       area. He stated that he got a "semi chummy" and BG was grinding
       back and forth. He described BG as sexual and would grab his
       penis while he was showering. He admitted that his penis touched
       BG's buttocks. He stated that BG tried to get the defendant to put
       his penis in her vagina a couple of times. He admitted that he
       woke up humping her.


       On January 26, 2017, Notice of Sentencing was filed, scheduling sentencing for

April 10, 2017. On March 22, 2017, an Order was entered upon agreement of counsel to

reschedule sentencing due to a conflict. On March 29, 2017, a second Notice of

Sentencing was filed scheduling sentencing for May 8, 2017. Prior to that sentencing

date, Defendant filed a motion to Withdraw Guilty Plea and Appoint Conflict Counsel on

April 28, 2017. On May 8, 2017, the Commonwealth filed an Answer to the Motion. On

May 8, 2017, an Order was entered appointing Alexander Silow, Esquire, to represent

Defendant. A hearing on Defendant's Motion to Withdraw Guilty Plea was held on June

20, 2017. On June 28, 2017, the Commonwealth filed a Supplemental Response to

Defendant's Motion. On August 7, 2017, an Order was entered denying Defendant's

request to withdraw his plea and a pre-sentence investigation was ordered.

       Defendant was sentenced on December 6, 2017 and he filed a Post Sentence

Motion on December 8, 2017. An Order was entered on December 15, 2017 directing

the parties to file briefs addressing the issues set forth in Defendant's motion.

Defendant's Memorandum of Law was filed January 30, 2018 and the Commonwealth's

Response was filed February 14, 2018. On March 26, 2018 an Order was entered

denying Defendant's Post Sentence Motion requests.



                                           9
        On April 26, 2018, Defendant filed a timely appeal. On May 7, 2018 an Order was

entered directing defense counsel to file a Concise Statement of Errors Complained of on

Appeal within twenty-one (21) days. Defendant's statement was filed on May 15, 2018.

        Defendant's only argument on appeal is that "[t]he Trial Court erred by denying

Defendant's motion to withdraw his guilty plea prior to being sentenced." We note that

Defendant requested to withdraw his guilty plea both prior to sentencing and after

sentencing in his post-sentence motion, filed on December 8, 2017. We shall examine

defendant's request to withdraw his plea under the more liberal standards set forth for

pre-sentence requests. Appellant review of a trial court's ruling on a pre-sentence motion

to withdraw a guilty plea is under an abuse of discretion standard. Commonwealth v.

Islas, 156 A.3d 1185, 1187 (Pa.Super. 2017), citing Commonwealth v. Elia, 83 A.3d 254,

261 (Pa.Super. 2013).

       "Pennsylvania Rule of Criminal Procedure 591 (A) provides: '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."' Islas, 156 A.3d at 1187, quoting Pa.R.Crim.P.

591 (A). "The official comment to Rule 591 provides: 'After the attorney for the

Commonwealth has had an opportunity to respond, a request to withdraw a plea made

before sentencing should be liberally allowed."' Id. "Similarly, in Commonwealth v.

Forbes, the Pennsylvania Supreme Court concluded: '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."' Islas, 156 A.3d at 1187-1188,

quoting Forbes, 299 A.2d 268, 271 (Pa. 1973).




                                           10
'"In 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."' Islas, 156 A.3d at 1188,

quoting Forbes, 299 A.2d at 271. (internal citations and some internal quotations

omitted).

       "In Commonwealth v. Carrasquillo, ... the Pennsylvania Supreme Court recently

provided further guidance on the proper exercise of discretion in the context of pre-

sentence requests to withdraw guilty pleas. While the Court reaffirmed the Forbes liberal-

allowance standard, it also observed that its own application of that standard had 'lent the

false impression that this Court had required acceptance of a bare assertion of innocence
                                                       II
as a fair-and-just reason' to withdraw a guilty plea. Islas, 156 A.3d at 1188, quoting

Carrasquillo 115 A.3d 1284, 1292 (Pa. 2015). "'In other words, we acknowledge the

legitimate perception of a per se rule arising from this Court's decisions."' � The

Carrasquillo Court acknowledged that '"[w]hile our Court shared this misimpression, ... we

also observed that this per se approach was 'apparently an extremely unpopular rule with

prosecutors and trial courts."' Islas, 156 A.3d at 1188-1189,

         quoting Commonwealth v. Kirsch, 930 A.2d 1282, 1285 (Pa.Super. 2007).

       "Rejecting the per se approach, our Supreme Court in Carrasquillo held that 'a




                                            11
bare assertion of innocence is not, in and of itself, a sufficient reason' to grant a

defendant's motion to withdraw a guilty plea." Islas, 156 A.3d at 1189, quoting

Carrasquillo 115 A.3d at 1285. The Carrasquillo Court "further stated that 'a mere, bare,

or non-colorable assertion of innocence is insufficient, in and of itself, to support

withdrawal of a plea."' Islas, 156 A.3d at 1189, quoting Carrasquillo 115 A.3d at 1290, n.6.

Replacing the bright-line rule, the Carrasquillo Court "instructed 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."' Islas, 156 A.3d at 1189, quoting Carrasquillo

115 A.3d at 1292.

       The Carrasquillo Court provided several guideposts that bear on the proper

exercise of discretion by trial courts when addressing requests to withdraw a guilty plea.

Islas, 156 A.3d at 1190. "First, the Court squarely rejected a per se approach in which

any presentence motion to withdraw a guilty plea based on a claim of innocence must be

granted."   kl   "Second, nothing in Carrasquillo suggests that the Court intended the

pendulum to swing fully in the other direction-from automatic grants to automatic denials

of pre-sentence motions to withdraw. Indeed, the Court expressly reaffirmed the liberal-

allowance language in Forbes, which continues to stand in sharp contrast to the 'manifest

injustice' standard for post-sentence motions to withdraw."    kl   "Third, the Court directed

trial courts to distinguish between 'mere, bare, or non-colorable' assertions of innocence

on the one hand and those that are 'at least plausible' on the other."    kl   "Fourth, as trial




                                           12
courts undertake the task of making that distinction, both the timing and the nature of the

innocence claim, along with the relationship of that claim to the strength of the

government's evidence, are relevant."     llt
       We now turn to the facts of the cases that have applied these standards for

guidance. In Carrasquillo "our Supreme Court ruled that the defendant had not offered a

plausible innocence claim given that it was rather bizarre-a 'devil made me to it' claim of

innocence-and since the innocence claim was offered just prior to sentencing" the denial

of the request to withdraw the guilty plea was upheld. Commonwealth v. Baez, 169 A.3d

35, 39 (Pa.Super. 2017), citing Carrasquillo, 115 A.3d at 1292.

       In a companion case to Carrasquillo, the Pennsylvania Supreme Court in

Commonwealth v. Hvizda, "upheld the trial court's refusal to permit the defendant to

withdraw his guilty plea because his innocence assertion was implausible as it was

unsupported and rebutted by the Commonwealth's proof." Baez, 169 A.3d at 40, citing

Hvizda, 116 A.3d 1103 (Pa. 2015). "In Hvizda, the defendant entered a guilty plea to first

degree murder in connection with the stabbing death of his estranged spouse. Prior to

imposition of his sentence, he asked to withdraw the plea claiming that he was innocent.

The trial court conducted a hearing on the request to withdraw, where the defendant

again asserted that he was innocent but failed to proffer any support for that claim. On the

other hand, the Commonwealth produced recorded telephone conversations that the

defendant made from jail; in the tapes, the defendant admitted that he killed his wife and

indicated that he wanted to go to trial to tell his side of the story."   llt
       The Pennsylvania Superior Court in Commonwealth v. Johnson-Daniels noted that

in Commonwealth v. Blango, it applied Carrasquillo and "concluded that the trial court had




                                            13
not abused its discretion in declining to permit the defendant to withdraw his guilty plea.
\/Ve noted that, in light of the defendant's trial testimony against his co-defendants

admitting his role in the offense and the timing of his motion, which was made

immediately after learning of the Commonwealth's sentencing recommendation, the

defendant's assertion of innocence was 'implausible' and 'instead was an attempt to

manipulate the system."' Commonwealth v. Johnson-Daniels, 167 A.3d 17, 24

(Pa.Super. 2017), quoting Blanga, 150 A.3d 45, 48 and 52 (Pa.Super. 2016).

       "[More] recently, in Islas, the Superior Court applied Carrasquillo and concluded

that the trial court had erred in denying the defendant's pre-sentence motion to withdraw

his guilty plea. The court concluded that, unlike the defendants in Carrasquillo and

Blanga, Islas' assertion of innocence was 'not mere, bare, or non-colorable, but instead

was at least plausible."' Johnson-Daniels, 167 A.3d at 24, citing Islas, 156 A.3d at 1189.

The Islas Court noted "that Islas had entered his plea three days before trial was set to

begin and before a jury had been selected. He had moved to withdraw his plea over one

month after its entry, when new counsel entered his appearance, and almost two months

before sentencing."   kl   The court "also observed that Islas had maintained his innocence

from the beginning, even though we noted further that a conclusion that a claim of

innocence is likely or unlikely to succeed at trial is 'irrelevant' to the consideration of

whether the trial court properly denied the motion to withdraw."     kl   The Islas Court

further determined that the defendant's "assertions constituted valid defenses against the

charges leveled by the victim, ... [and] reversed the trial court's denial of Islas' pre-

sentence motion to withdraw his guilty plea." Baez, 169 A.3d at 40, citing Islas, 156 A.3d

at 1191.




                                           14
    ·    In Commonwealth v. Johnson-Daniels the Superior Court applied these standards

and concluded that the trial court did not abuse its discretion in refusing the withdrawal of

the guilty plea. 167 A.3d at 25. The facts in that case were that "despite the case being

initiaily listed in 2014, Appellant entered his guilty plea on the day trial was set to begin in

December 2015. Seven weeks after the entry of the guilty plea, on the day of sentencing,

the Commonwealth made a passionate argument regarding Appellant's crimes before

informing the court the sentence it was recommending. It was only after hearing the

recommended sentence that Appeilant's counsel requested the withdrawal of the plea."

l<;;L_ at 24. The Johnson-Daniels Court also determined that the defendant's assertion of

innocence was lacking in plausibility, which was another factor in upholding the denial of

the request to withdraw the plea. !Q.. at 25.

         In Commonwealth v. Baez, the Superior Court applied these standards and

concluded that the trial court did not abuse its discretion in refusing the withdrawal of the

guilty plea. In Baez, the defendant "offered a bald claim that he was innocent that was

unaccompanied by assertions that he had defenses to the charges. The guilty plea

colloquy refuted his secondary position that he pied guilty because the trial court told him

that it would impose a sentence of sixty-five years in jail if the jury convicted him. On the

other hand, the record establishes that the victim testified that Appellant penetrated her

vagina with his penis and fingers and that he placed his mouth on her vagina." 169 A.3d

at 40.

         Turning to the case at hand, in addition to alleging his innocence, Defendant set

forth the following as the bases to withdraw his plea. He alleged counsel was ineffective

for having him enter the plea because he did not view the entire video of his police




                                           15
interview and he did not get a transcript of the video. Defendant also alleged that the

video of his police interview was altered/mechanically manipulated and he wanted

defense counsel to hire an expert witness to examine the video.

       A hearing was held on June 20, 2017 at which Defendant's prior counsel,

Sergeant Christine Cusick and Detective Gerald Davis all testified credibly regarding

these allegations.   We shall first address the issue regarding Defendant's allegation that

his police interview was altered or mechanically manipulated. Sergeant Christine Cusick

and Detective Gerald Davis interviewed Defendant on May 5, 2016 regarding the

allegations of sexual assaults on the three minor victims. (N.T., 6/20/17, p. 13). The

interview was audio and video-recorded at the Caln Police Department. (N.T., 6/20/17,

pgs. 13-14).

       Sergeant Cusick testified that the "interview room in the Caln Police Department

[is] set up so that we can automatically record audio and video, so once we activate that

switch, it does record to a server. And we go into the server and we can retrieve that

information and put itto a disk." (N.T., 6/20/17, p. 14). The system records about an

hour at a time. (N.T., 6/20/17, p. 15). This procedure was done in this case and the

audio/video recording of this interview consisted of five disks that were entered into

evidence as Exhibit CW1. (N.T., 6/20/17, pgs. 14-15).

       When questioned as to whether she did anything to manipulate the disks in

anyway, Sergeant Cusick responded, "Not at all. These are DVDs, so they are not

rewritable as far as I know. And I wouldn't know how to do that anyway." (N.T., 6/20/17,

pgs. 16-17). Sergeant Cusick also testified that she reviewed the video interview of

Defendant and it accurately reflected the interview that took place on May 5, 2016. (N.T.,




                                         16
6/20/17, p. 17).

       Detective Davis testified that the interview cf Defendant on May 5, 2016 lasted

approximately four and   a half hours. (N.T., 6/20/17, p. 48). He reviewed all five disks of

the video of Defendant's interview and it was identical to the actual interview that took

place on May 5, 2016. (N.T., 6/20/17, pgs. 48-49). Detective Davis testified that he did

not manipulate the disks in any way, nor was there "editing in any way, shape or form."

(N.T., 6/20/17, p. 49). When asked "Was there any material that could have been

deleted from the disk?," Detective Davis responded, "No." Id.

       Prior defense counsel Kelly Jurs was also questioned regarding the disks of the

interview as follows:

       Q       When you had the opportunity to review the disks, all five
       disks, I believe, of the defendant's May 5 statement to the police in
       this case, did you notice anything unusual with any of the disks,
       any problems with running the disk or observing something unusual
       indicating some sort of a manipulation?
       A       No, nothing like that at all.
       Q       Did anything look like it was edited, in your personal view?
       A       No. Nothing - nothing indicated that, or there was nothing
       that called - that brought my attention to that kind of issue, the
       continuity of the language flowed. There were not any breaks. The
       conversations all made sense within the context, so I had no
       reason to believe that there was any kind of editing that would have
       occurred.

(N.T., 6/20/17, pgs. 24-25).

       On cross-examination, the following exchange took place:

       Q      Did he point out at any time prior to taking the guilty plea that
       he believed, excuse me, that his statement to the officers were
       altered in any way?
       A      I don't believe so. When we watched the videos - no. I
       mean, he would stop the video to ask questions about what was
       being said, and try to explain what was being said. But the first
       time that he brought this up, to my recollection, was after he
       entered into the guilty plea as far as the tampering was concerned.



                                          17
      Q        Did he point out to you at any time where he thought the
      video was altered?
      A        No.
      Q        Did he ask for you to send the video out to an outside
      specialist to determine whether or not the video had been altered?
      A       He did.
      Q       And did you do that?
      A       No.
      Q       Why not?
      A       He made that request post-plea. And after conferring with
      my supervisor and evaluating whether I thought there was merit to
      that, or not, we determined that there wasn't, and it would,
      basically, be a waste of time and money to do that.
      Q       Can you please elaborate a little more on that, on your
      discussions and decisions?
      A       Sure.
                      I - when he had brought this up, and I apologize I
      can't recall if Mr. Schenker was there at one of these meetings
      where he mentioned that, he may have been, but I went to Mr.
      Schenker and said, Mr. Guiseppe has raised this issue, I don't think
      it has any merit. Is it something that we should send out to have
      looked at? And he said, no.
                      THE COURT: For the record, who's Mr. Schenker?
                      THE WITNESS: Mr. Schenker is the First Assistant
      Public Defender, and my direct supervisor.
      BY MR. SILOW:
      Q       When he pointed out parts of the video that he thought were
      altered, did you view those parts with him?
      A       I don't recall him pointing out any parts of the video that
      were altered.

(N. T., 6/20/17, pgs. 34M35).

      This court independently reviewed all four hours and thirty-three minutes of the

video interview of Defendant. (Exhibit CW1 ). Throughout this lengthy interview, slight

pauses occur on thirteen occasions at the following time counts: Disk one: 11 :42:26;

Disk two: 12:00:32 and 12:18:38; Disk three: 13:12:57, 13:31:04 and 13:49:10; Disk

four: 14:07:17, 14:25:24 and 14:43:30; and Disk five: 15:01 :37, 15:01 :44, 15:19:44 and

15:37:50.




                                       18
       However, the time counter on the disks never skips any seconds and the

continuity of the language continues to flow after each sliqht pause. It is abundantly

clear to this court that these disks were not manipulated during or after the interview

and the slight pauses were due to the technology used to record and or copy the

interview to the disks. There was nothing deleted from or added to the interview.

Based on the totality of the evidence presented to the court, it is found that Defendant's

allegation that the video was altered is without merit.

       It is also found that prior defense counsel was not ineffective for failing to hire an

expert to examine the disks of the video interview when it is clear that they were not

altered. It would have been a waste of resources of both time and money to comply

with Defendant's unreasonable request.

       We now turn to Defendant's allegation that prior counsel was ineffective for having

him enter the plea because he did not view the entire video of his police interview and he

did not get a transcript of the video. Prior defense counsel acknowledged that after

Defendant entered the guilty plea, he indicated that he had concerns about not having

viewed the entire video of the interview. (N.T., 6/20/17, pgs. 26 and 33).

       When Ms. Jurs was questioned as to why Defendant was not shown the entire

video from start to finish, the following exchange took place:

       Q      And did you share with the defendant his statements that
       was testified to earlier, the statement of May 5, 2016, with
       Detective Jerry Davis, as well as Sergeant Cusick?
       A      I did review portions of it with him, yes.
       Q      And when you - you stated you reviewed portions of it, what
       kind of portions - what portions did you review?
       A      The portions that I reviewed with Mr. Guiseppe were the
       ones that I thought pertained most directly to the specific incidents
       that were alleged and the criminal complaint in the criminal
       information.



                                         19
              The statements that he gave to the police officer and the
      statements that he went through during the polygraph exam were
      quite lengthy. I did review all of those myself, and then reviewed
      the portions that I thought were appropriate - not appropriate, but
      most critical to what we were dealing with, and addressing as far as
      the charges were concerned, specifically, and what evidence the
      Commonwealth could present at trial.
      Q       When you reviewed the defendant's statement on May 5,
      2016, the entire statement was not just about the actual
      allegations, there was other superfluous types of information
      contained in there?
      A       Correct. There was other information concerning his
      relationships with ex-girlfriend, family issues, family history, a
      number of different things which may have collaterally been
      relevant, but I was trying to, basically, target what was going to be,
      in effect, what I judge, most damaging and most problematic to
      review with him.

(N.T., 6/20/17, pgs. 23-24).

       Having independently reviewed the entire video of the interview, this court

confirms that counsel's assessment of the interview was correct in that there were

discussions throughout the interview about topics that would not have been applicable

to a discussion between Defendant and counsel about the charges and possible

defenses.

       It must be remembered that this video was an interview of Defendant himself. It

was not an interview of a third party witness to which Defendant would not know what

was said during the interview. Defendant fully participated during the interview and has

firsthand knowledge about what he told the law enforcement officers. Defendant's

allegation that counsel was ineffective for failing to show him the entire interview and

that he was somehow prejudiced by this is without merit.

       Defendant's allegation that he should have been provided a copy of a transcript

of the interview is also without merit. This four and a half hour interview was not'




                                         20
transcribed. Ms. Jurs testified that "generally speaking, our policy is not to have things,

transcribed unless we're confident that something is going to go .to trial. And then,

generally speaking, we get those transcripts from the Commonwealth and review them

with the clients beforehand." (N.T., 6/20/17, p. 33). Counsel cannot be ineffective for

failing to give Defendant a document that does not exist. In addition, Defendant

participated in the interview and had firsthand knowledge of what was was said

throughout. Therefore, this allegation is found to be without merit.

       \JVe now turn to Defendant's allegation of innocence. During his requests to

withdraw his guilty plea Defendant alleged that he was innocent of the charges but

failed to proffer any support for that claim. His innocence assertion is implausible as it is

rebutted by the Commonwealth's proof. Defendant had confessed to the crimes and

gave detailed accountings of what transpired between him and the three minor victims.

Many of the details he gave to the officers were confirmed in the independent interviews

of the victims.

       Detective Davis testified about some of these specific acts to which Defendant

confessed during the interview. Regarding six year old victim B.G., Defendant

confessed to waking up with his hand down B.G.'s underpants "on her clit moving

around." (N.T., 6/20/17, p. 50). Defendant described B.G.'s clit as being "large like her

mother's."   k:L.   Defendant told Detective Davis that his hand was in B.G.'s underpants

for approximately two minutes before her removed it. (N.T., 6/20/17, p. 50).

       In the interview, Defendant had "admitted to waking up to B.G. sucking on [the]

head of his penis." (N.T., 6/20/17, p. 51). Defendant confessed that he was fully

aroused and his penis was erect.      k:L.   Defendant also admitted to another sexual




                                              21
encounter with B.G. when he was sitting in a blue chair. He ''described that his penis

had come out of his boxers and that the victim was on his lap and began to grind. And

he became semi-erect because of that" using the term chubby or chummy to describe

his penis.   kL.   Also in the interview, Defendant confessed to waking up humping B.G.

and told the Detective that B.G. tried to get Defendant to put his penis in her vagina

"several times." (N.T., 6/20/17, p. 52).

       Regarding nine year old victim S.G., Defendant admitted that he would sleep

naked with her and would wake from erotic dreams. (N.T:, 6/20/17, p. 56).

Defendant confessed that his penis would come out of his boxers and he would rub his

erect penis between S.G.'s thighs, humping her, until her ejaculated.      kL.   Defendant

referred to that several times in the interview as "blowing· a huge load." (N.T., 6/20/17,

p. 57). Defendant also admitted to showing pornography to S.G.       kL.
       Regarding ten year old victim A.H., Defendant admitted in the interview that A.H.

had performed oral sex on him, there was digital penetration, he showed her

pornography and that he ejaculated with her. (N.T., 6/20/17, p. 53). In his interview

and the interview of the victim A.H., both individuals used the term "go-to-girl" to

describe A.H. and that Defendant's ejaculation was called baby juice. (N.T., 6/20/17,

pgs. 53-54).

       Defendant confessed to rubbing his penis against A.H's bare thighs and would

describe his "ejaculation as blowing a huge load on the victim." (N.T., 6/20/17, p. 54).

Defendant also admitted to sleeping naked with AH. on multiple occasions.          kL.
Defendant told Detective Davis that he would use his eyes, fingers and Q-tips to look

for pinworms in the victims' anuses and vaginal areas. (N.T., 6/20/17, pgs. 54-55).




                                           22
         In describing the aggravated indecent assault he performed on A.H., Defendant

explained "that A.H. wanted to know what it felt like to be digitally penetrated, using the

slang word of fingered, and he said that he demonstrated that for A.H., and that he did

so violently." (N.T., 6/20/17, p. 55). Defendant described A.H.'s vagina as a "tiny little

seal."   kL.
         It is also extremely compelling to learn that at the time of the interview, the law

enforcement officers did not know that A.H. was one of Defendant's victims. (N.T.,

6/20/17, p. 56). He supplied all of the information to them about acts he performed on

A.H., which were later confirmed by the victim herself.     kL.   Defendant told the law

enforcement officers that "he felt her shouldn't get in trouble for it since he provided it to

us."   kL.
         After the May 5, 2016 interview, Defendant was allowed to l�ave the police

station. (N.T., 6/20/17, p. 57). When he was eventually taken into custody, he was in

possession of a cell phone that was examined and found to contain discussions about

the children. 19..:. Defendant had reached out to a relative of A.H., either her mother or

grandfather, and used language very similar to what he used in the interview to

describe what he had done with the child, specifically, "blowing a huge load on the

victim." (N.T., 6/20/17, pgs. 57-58).

         These are just some examples of the evidence the Commonwealth has to refute

Defendant's claim of innocence. Defendant's confession and his statements describing

the acts, which were corroborated by the victims, lead this Court to conclude that

Defendant's innocence assertion is implausible.




                                           23
        Based on all of the reasons set forth above, it was proper for this Court to deny

Defendant's request to withdraw his guilty plea and his appeal should be denied and

dismissed.




                                           BY THE COURT:



                                           elirlPsTlifi!ll
DATE:   c/JJtjrl




                                         24
