J-S26040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROLAND GATHRIGHT                           :
                                               :
                       Appellant               :   No. 3748 EDA 2016

             Appeal from the Judgment of Sentence June 24, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001034-2009,
                              CP-51-CR-0001055-2009


BEFORE:      BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED MAY 30, 2018

        Appellant, Roland Gathright (“Gathright”), appeals from the judgment

of sentence entered in the Court of Common Pleas of Philadelphia County

following his guilty plea to two counts of rape of a child with serious bodily

injury, two counts of unlawful contact with a minor, two counts of incest, two

counts of endangering the welfare of a child-course of conduct, and two counts

of indecent assault.1 After a careful review, we affirm.

        The relevant facts and procedural history are as follows: On May 17,

2011, Gathright, who was represented by counsel, entered an open guilty plea



____________________________________________


1   18 Pa.C.S.A. §§ 3121(d), 6318, 4302, 4304, 3126, respectively.



____________________________________
* Former Justice specially assigned to the Superior Court.
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to the charges indicated supra. Gathright’s guilty plea stemmed from charges

that he raped his two nieces, K.B., who was two years old at the time of the

incident in the spring of 2008, and A.B., who was ten years old at the time. 2

Specifically, at the guilty plea hearing, the Commonwealth made the following

relevant evidentiary proffer:

              Your honor, if this case were to proceed to trial, there are
       numerous witnesses that the Commonwealth would have called to
       testify. The first person that I would like to draw your attention
       to is [K.F.]. . . .She would testify that [Gathright] is her biological
       brother. That back in October of 2007, she invited her brother to
       come and live in her home, and he remained in that home and
       lived at that home with her, her two-year-old daughter, [K.B.],
       and her husband, [R.F.].
             In the spring of 2008, there had been certain things that the
       family noticed. [K.F.] would testify that during the spring and into
       the summer that she had talked to her daughter, [K.B.], about
       whether or not anybody had touched her.
                                           ***
             During that time she would testify that the child did say to
       her that Uncle Ro-Ro, [this] is what they called [Gathright], . . .
       hurt her pootie cat. During that time she would testify that she
       didn’t think much of it as her child was being potty trained and
       the whole family was looking after her and attempting to help out
       in that potty training.
             Sometime in the beginning of the summer, she noticed that
       there was a discharge that her daughter was having. Towards the
       end of the summer, Your Honor, that discharge changed in color
       from a yellow, whitish to a green discharge. It was in September
       of 2008 that she took her daughter to the doctor because her
       daughter was complaining of pain to that area and also for the
       discharge.
            At that time they believed that what was happening to her
       daughter was a normal infection as a result of potty training,
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2The Commonwealth filed charges against Gathright at two separate docket
numbers; the cases were consolidated in the trial court.

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     something that would happen normally with a two-year-old. To
     her dismay, when she took the child to the hospital, she and her
     husband were informed that the child [ ] tested positive for
     gonorrhea.
            Your Honor, [R.F.], is the only other male that was present
     and had access to the child at this time[.] He has since passed
     away at the beginning of this month. However, [K.F.] would
     testify, and also I would have introduced at trial in this particular
     case, medical records indicating that the day after his
     stepdaughter was treated—or was tested positive for gonorrhea,
     he did go and was tested for any and all STDs, including HIV,
     including gonorrhea, chlamydia, and numerous other STDs, and
     would have at the time of trial called representatives from the
     place where he was [tested], introduced the medical records. The
     doctor who actually performed the test did recall that incident very
     specifically. She was on standby to testify in this particular trial
     that she remembered [R.F.], she remembered testing him. She
     remembered the specifics of why he was there, and she would
     testify that he tested negative to all STDs the day after the child
     presented with gonorrhea.
             Additionally, representatives from the Department of
     Human Services would also testify that they had to clear two
     individuals, [Gathright] that is seated before you and [R.F.]. They
     would testify that [R.F.] was more than cooperative with the
     investigation [and] that he was immediately cleared following the
     initial presentation of the two-year-old with gonorrhea.
            Your Honor, shortly thereafter the family was discussing the
     fact that a youngster in their family had tested positive for
     gonorrhea. [K.F.], her brother, [S.B.], is the father of [A.B.]. He
     is the biological brother of [Gathright], and the biological brother
     of [K.F.].
           During their conversations it had become alerted to the
     family that [K.B.] had tested positive for gonorrhea. At that time
     it had been discussed with the family that [A.B.] called her aunt
     which [sic] she had been spending a significant portion of the
     summer with. Nearly every weekend she would go to her aunt’s
     house at that location and she would spend weekends with her
     aunt, and also during that time she would testify, and so would
     [K.F.], that [Gathright] [was] over that summer, although he was
     no longer living there, would come over for visits.
           She telephoned her aunt when she heard about her younger
     [cousin] and told her that sometime throughout the end of the

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       summer, she can’t give an exact date, but she believes the
       summer was coming to a close, that there were two occasions in
       which she was present at that location and it was just her,
       [Gathright] and her two-year-old cousin,[K.B.]. They were alone
       with [Gathright] and [Gathright] inserted his penis into her
       vagina, [A.B.], as well as her two-year-old cousin. And that
       happened on two occasions that summer.
             She told her aunt and she later told police officers, and she
       would have been called in this particular trial to testify as to the
       details of those incidents.
             Your Honor, [S.B.] would also testify that he made
       numerous attempts to bring his brother in to authorities. The
       Commonwealth would have called Detective Claire Duckworth in
       this particular case and introduced a statement on behalf of
       [Gathright], and also would have brought in evidence through the
       Pennsylvania—through State Department of Pennsylvania, and
       also through Philadelphia city officials, that checks were done to
       see whether or not [Gathright] at any time had been tested
       anytime from September until December for gonorrhea. At no
       time in the State of Pennsylvania did we have a record of him
       being checked in under that name or being treated in
       Pennsylvania. They further would have testified they only would
       have been alerted to any positive testing.
                                           ***
             The first record we have of [Gathright] who was testing for
       gonorrhea in this particular case or any STD isn’t until September
       of 2008,[3] three months after he gave a statement and he was
       made aware of the charges in this particular case and that he was
       a suspect.
             Additionally, Your Honor, in this particular case, amongst
       other people that I have would have [brought in to testify,] I would
       have had an expert in the field of child abuse. That expert would
       have been Dr. Sarah Frioux. . . .She would testify that a child
       being diagnosed with gonorrhea is diagnostic of sexual abuse,
       meaning that both of these children medically were sexually
       abused. She would also further testify that gonorrhea, a person
____________________________________________


3 At the hearing, defense counsel indicated that the prosecutor misstated the
month Gathright had been tested. He indicated that Gathright was tested for
STDs when he turned himself in to the police in December of 2008 (as opposed
to September of 2008). N.T., 5/17/11, at 53.

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     can be spontaneously cured without treatment, which means that
     he could have it and then he could be resolved of it through his
     own body’s mechanism of treating that disease.
           She would also testify that [Gathright], if he had it any time
     during the time of the incident, all the way up until the time that
     he tested negative. . .that he also—if he was being treated for any
     other illness by penicillin or any other antibiotic, that, too, would
     have cleared up the treatment, the gonorrhea in this particular
     case.
           The Commonwealth also would have introduced documents
     of [Gathright’s] medical history while in custody, medical records
     of both of the children during the time of the incident and post the
     incident, DHS records, any statements of the children, and would
     have called other witnesses in this particular trial.
          This, Your Honor, although it’s at length, is only a summary
     of what I would have presented if this case had gone to trial.
           Additionally, Your Honor, in this particular case, I did further
     go to have [M.C.] who is somebody that [Gathright] admitted to
     having sexual intercourse. I was able to ascertain that over the
     course of ten years that she tested positive for chlamydia and
     gonorrhea approximately five times, and I would have also
     introduced into the record any and all tests that she received in
     the State of New Jersey at the time and around the time of this
     incident.
            In this particular case, this happened in 2008. [K.B.] who
     is now approximately five years old, although she was unable at
     the time to verbalize what happened, I had a discussion with her
     and she would have been present and she would have testified in
     this trial as a five-year-old and she would have testified that she
     did see her Uncle Ro-Ro’s private parts and that he put his private
     part in her and that it hurt. And numerous family members
     throughout the course of the investigation would testify that the
     child did state to them that Uncle Ro-Ro hurt my pootie cat on my
     private part.

N.T., 5/17/11, at 43-52.

     Following Gathright’s entry of a guilty plea, the two cases were

continued to August 11, 2011, for a Megan’s Law assessment, presentence



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investigation, and a mental health evaluation. On August 10, 2011, Gathright

filed a counseled presentence motion seeking to withdraw his guilty plea, as

well as a motion for a change of appointed counsel. On September 27, 2011,

the trial court determined Gathright was not a sexually violent predator,

permitted guilty plea counsel to withdraw, and appointed new counsel.

     Represented by new counsel, Gathright proceeded to a hearing on his

presentence motion to withdraw his guilty plea. At the hearing, Gathright’s

new counsel called guilty plea counsel to testify.     The following relevant

exchange occurred between Gathright’s new counsel and guilty plea counsel:

     Q: [Guilty plea counsel,] what, if anything, did you say to Roland
     Gathright on May 17, 2011[,] before he entered his guilty plea
     concerning his ability to withdraw that guilty plea?
     A: First, let me indicate that Mr. Gathright and I that morning had
     several conversations. And there was a hearing held before Mr.
     Gathright had decided to plead guilty. And at the conclusion of
     that hearing after [the prosecutor] indicated to Mr. Gathright on
     the record what possible sentence he may face if he were
     convicted on the charges and after some discussion with Judge
     Cohen, as to based on what Judge Cohen has done in the past
     with respect to sentencing, I had a conversation with Mr.
     Gathright. And I asked him, what did he want to do? And he said
     that he wanted to plead guilty. And I said that I had a form I had
     to get together, a written colloquy form and I proceeded to fill out
     the form with Mr. Gathright. I did indicate to Mr. Gathright that
     prior to sentencing that he would be permitted to ask me to file a
     motion with the [trial] [c]ourt to withdraw his guilty plea, that
     generally speaking, and I believe that this is the Rules of Criminal
     Procedure that the [trial] [c]ourt is expected to look at those
     motions favorably.
           I didn’t guarantee—I didn’t indicate to him that he had an
     absolute right to withdraw his guilty plea.        But, generally
     speaking, as a matter of practice, that if he were to change his
     mind before sentencing, he would need to indicate that to me and
     I would file the appropriate motion with the [trial] [c]ourt. And

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     we would have a hearing, and the judge would have to decide
     whether or not to permit him to withdraw his guilty plea. But I
     didn’t necessarily stress that there would be an issue with that. I
     didn’t suggest that that most likely would be granted, but, again,
     I didn’t say it was an absolute right. And, of course, post
     sentencing I indicated to him that—well, Mr. Gathright’s concern
     was with respect to what sentence he would receive, because it
     was an open plea. So I had indicated to Mr. Gathright that upon
     sentencing if he received a sentence that he thought was not
     within his scope of expectations, based on my conversations with
     him, that he would have a right to have me file a motion,
     immediate motion, within 10 days or within 30 days.
           The motion within 10 days would be before the [trial] court.
     The motion within 30 days would be with the Superior Court, but
     it would have to meet a certain standard in order for him to be
     able to prevail on withdrawal of his guilty plea post sentencing.
     And it was in the colloquy form. I reviewed the colloquy form with
     him.
                                     ***
           Also, I should indicate that, of course, Judge Cohen does
     extensive, extensive colloquy during the guilty plea process itself.
     So anything that I might have missed in my conversations with
     him were later thoroughly gone over by Judge Cohen before Mr.
     Gathright entered his guilty plea.
     Q: [W]hat, if anything, did you say to Mr. Gathright about his
     ability to withdraw his guilty plea?
     A: I limited my answer to specifically focus on what recourse he
     would have in terms of withdrawing his guilty plea either before
     sentencing or after sentencing.
     Q: Number two, did you ever tell Mr. Gathright that he could
     withdraw his guilty plea at any time?
     A: No, I did not.
     Q: Number 3, did you ever tell Mr. Gathright’s family members,
     [his mother] or any other of his family members, to go home prior
     to his entering his guilty plea?
     A: No, I did not. And I could say that the victims were in the room
     with the family which is part of his family. And [his mother] left
     because, as I recall, she had some sort of—somebody in the
     hospital and she needed to leave. And I know that she was upset
     but I did not have a conversation with—as far as I know, the only


                                    -7-
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     member there for Mr. Gathright was the mother. At no point did
     I ever tell [his mother] to leave prior to Mr. Gathright entering his
     guilty plea.

N.T., 6/15/12, at 36-41.

     Gathright testified at the hearing on his motion to withdraw his guilty

plea. He testified on direct-examination that he was innocent of the charges.

N.T., 6/20/12, at 8-9.     After being confronted on cross-examination with

excerpts from the guilty plea hearing at which Gathright acknowledged his

guilt, the following relevant exchange occurred between Gathright and his

counsel on redirect-examination;

     Q: The district attorney just went through a number of questions
     where you answered yes or said the word guilty a number of
     times; do you recall that?
     A: Yes.
     Q: Why did you say those words to Judge Cohen on May 17,
     2011[,] if today you’re telling him that you’re innocent of these
     charges?
     A: Why did I say I was guilty?
     Q: Yes.
     A: Because [guilty plea counsel] advised me to plead guilty. And
     she told me that if I lose, I can get up to life in prison. And she
     said that if I plead guilty, I can be home within—by the time I’m
     35.

N.T., 6/20/12, at 32.

     In opposition to Gathright’s motion to withdraw his guilty plea, the

Commonwealth called K.B.’s mother, K.F., to testify. K.F. confirmed Gathright

is her brother. Id. at 34. She indicated K.B. began behaving erratically when

she and the district attorney were preparing for Gathright’s trial. Id. at 36.

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She noted that K.B. initially had many nightmares related to the molestation;

however, the number of nightmares has decreased over time. Id. at 36-37.

K.F. testified she took K.B. to a therapist, and “[s]he seems like now she’s a

normal kid.” Id. at 38-39. She testified that she is concerned that, if K.B.

has to prepare again for Gathright to go to trial, K.B. will regress and have

emotional difficulties. Id. at 39-40.

      The Commonwealth also called A.B.’s father, S.B., to testify. S.B.

confirmed Gathright is his brother. Id. at 41. S.B. indicated that, after A.B.

testified at Gathright’s preliminary hearing she “had to go [to] counseling.

She was really shaky, real[ly] scared, didn’t trust nobody [sic], not even [her

father].” Id. at 42-43. He stated that after the molestation, from January of

2009 until May of 2011, A.B. was “in a lot of fights. . .[and] got kicked out of

school for fighting.” Id. at 43. However, after she learned that Gathright had

pled guilty, A.B.’s behavior improved. Id. at 44.     S.B. testified that, when

A.B. discovered that Gathright was seeking to withdraw his guilty plea, she

became upset and immediately got into another fight at school. Id. at 45-46.

S.B. testified that if A.B. has to testify against her uncle she will suffer

emotional harm. Id. at 47.

      At the conclusion of the hearing, the Commonwealth argued Gathright

“is playing games with the court system and he is trying to play fast and loose

with the Commonwealth’s ability to present a case against him.” Id. at 55-

56.   The Commonwealth also argued it would be substantially prejudiced


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because of the emotional trauma, which the victims would suffer by reliving

the crimes and testifying after the passage of so much time. Id. at 61-63.

       On June 20, 2012, at the conclusion of the hearing, the trial court

ordered that Gathright could withdraw his guilty plea.     The case was then

listed for trial; however, on July 20, 2012, the Commonwealth filed a notice

of appeal.

       On appeal, in an unpublished memorandum filed on February 12, 2014,

a three-judge panel of this Court affirmed the trial court’s order granting

Gathright’s presentence request to withdraw his guilty plea. In affirming, the

panel relevantly indicated the following:

              In Commonwealth v. Carrasquillo, 78 A.3d 1120
       (Pa.Super. 2013) (en banc),[4] this court examined this issue;
       namely, whether the defendant’s assertion “I didn’t commit this
       crime” as part of his allocution statement at sentencing was a fair
       and just reason to withdraw his guilty plea. The Carrasquillo [en
       banc panel], after a thorough analysis beginning with the two-part
       standard enunciated by our Supreme Court in Forbes,[5] determined
       that “Appellant’s presentence assertion of innocence is a ‘fair and
       just’ reason to grant his guilty plea withdrawal.” Id. at 1128.



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4 After this Court filed its en banc decision, the Commonwealth filed a petition
for allowance of appeal in Carrasquillo, which the Supreme Court granted on
February 19, 2014, in order to clarify the criteria governing the disposition of
a presentence motion to withdraw a guilty plea. See Commonwealth v.
Carrasquillo, 624 Pa. 503, 86 A.3d 830 (2014) (per curiam order).
Accordingly, when the three-judge panel of this Court filed its unpublished
memorandum in the instant case on February 12, 2014, the Commonwealth’s
petition for allowance of appeal in Carrasquillo was pending before the
Supreme Court.

5   Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268, 271 (1973).

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           In the instant case, [Gathright] claimed [sic] clearly and
      unconditionally declared that he was innocent. Accordingly, the first
      prong of the two-part test enunciated in Forbes was met.

Commonwealth v. Gathright, No. 2065 EDA 2012, at 7-8 (Pa.Super. filed

2/12/14) (unpublished memorandum) (footnotes added).

      The panel next considered whether Gathright’s withdrawal of his guilty

plea would substantially prejudice the Commonwealth. Id. at 8. The panel

held that “this court’s point of inquiry with regard to substantial prejudice is

the Commonwealth’s ability to try its case. Had [Gathright] never pleaded

guilty, the Commonwealth would have been in the same position in which it

presently finds itself.” Id. at 10-11 (citation omitted). Accordingly, the panel

concluded the trial court did not abuse its discretion in finding there would be

no substantial prejudice to the Commonwealth in permitting Gathright to

withdraw his guilty plea. Id. at 11. Thus, the panel of this Court affirmed.

See id.

      On March 14, 2014, in the instant case, the Commonwealth filed a

petition for allowance of appeal to our Supreme Court. While                  the

Commonwealth’s petition was pending in the Supreme Court with regard to

the instant case, the Supreme Court reversed this Court’s en banc decision in

Carrasquillo. Specifically, in Commonwealth v. Carrasquillo, 631 Pa. 692,

115 A.3d 1284 (2015), our Supreme Court relevantly held the following:

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

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      broadly, the proper inquiry on consideration of such a withdrawal
      motion is whether the accused had made some colorable
      demonstration, under the circumstances, such that permitting
      withdrawal of the plea would promote fairness and justice. The
      policy of liberality remains extant but has its limits, consistent with
      the affordance of a degree of discretion to the common pleas
      courts.

Id. at 705-06, 115 A.3d at 1292.

      Thus, concluding that the court of common pleas did not abuse its

discretion in finding the defendant’s assertion of innocence was incredible, the

Supreme Court held the court of common pleas did not err in denying the

presentence motion to withdraw the guilty plea. See id. Consequently, the

Supreme Court reversed this Court’s en banc decision and remanded for the

reinstatement of the judgement of sentence. See Carrasquillo, supra.

      Thereafter, with regard to the instant case, the Supreme Court granted

the Commonwealth’s petition for allowance of appeal, vacated this Court’s

decision, and remanded for consideration by the trial court consistent with the

Supreme Court’s opinion in Carrasquillo. Commonwealth v. Gathright,

632 Pa. 447, 121 A.3d 434 (2015) (per curiam order).

      Upon remand, the trial court held a hearing on January 29, 2016, at

which no new evidence was presented but the attorneys presented argument

in light of the Supreme Court’s opinion in Carrasquillo. By order entered on

April 22, 2016, the trial court denied Gathright’s presentence motion to

withdraw his guilty plea, and on June 24, 2016, following a sentencing

hearing, the trial court imposed an aggregate of twenty years to forty years


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in prison. Gathright filed a timely, counseled post-sentence motion,6 which

was deemed denied by operation of law, and this timely appeal followed. The

trial court did not order Gathright to file a Pa.R.A.P. 1925(b) statement, and

consequently, no such statement was filed. However, the trial court filed a

Pa.R.A.P. 1925(a) opinion.

       On appeal, Gathright’s sole issue is whether the trial court abused its

discretion in denying his presentence motion to withdraw his guilty plea.

Specifically, Gathright first contends he presented a “plausible” reason, in and

of itself, to demonstrate a “fair and just” reason for presentence withdrawal

of his guilty plea. He next contends the Commonwealth failed to demonstrate

that his withdrawal of the guilty plea would cause substantial prejudice to the

Commonwealth.

       After the Supreme Court’s filing of its Opinion in Carrasquillo, this

Court recognized:

             [In Carrasquillo, the Supreme Court] clarified the
       parameters of when a pre-sentence motion to withdraw is to be
       granted based upon an assertion of innocence. Therein, our
       Supreme Court re-affirmed that the trial court is imbued with the
       discretion to deny a defendant permission to withdraw a guilty
       plea, whether that request is tendered before or after
       sentencing,[7] and we, as an appellate court, can reverse its
____________________________________________


6In his post-sentence motion, Gathright challenged the discretionary aspects
of his sentence and claimed the trial court erred in denying his presentence
motion to withdraw his guilty plea.

7We note that the standard for presentence and post-sentence withdrawal of
a guilty plea is not the same. “Post-sentence motions for withdrawal are



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       decision only when that discretion is abused. Pa.R.Crim.P. 591(A)
       (emphasis added) (“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.”).
       While a pre-sentence motion to withdraw is to be liberally allowed,
              there is no absolute right to withdraw a guilty plea;
              trial courts have discretion in determining whether a
              withdrawal request will be granted; such discretion is
              to be administered liberally in favor of the accused;
              and any demonstration by a defendant of a fair-and-
              just reason will suffice to support a grant, unless
              withdrawal would work substantial prejudice to the
              Commonwealth.

Commonwealth v. Baez, 169 A.3d 35, 38-39 (Pa.Super. 2017) (quoting

Carrasquillo, supra at 1291–92) (footnote omitted) (footnote added)

(emphasis in original).

       We have further recognized that, in Carrasquillo, with regard to a “fair

and just” reason, our Supreme Court rejected the application of a bright-line

rule that “prohibited, as a matter of law, trial courts from assessing the

credibility of an assertion of innocence made in the context of a presentence

motion to withdraw a guilty plea.”             See Commonwealth v. Johnson-

Daniels, 167 A.3d 17, 23-24 (Pa.Super. 2017) (citation omitted). Further,

this Court has recognized that, in Carrasquillo, the Supreme Court observed:


____________________________________________


subject to higher scrutiny since courts strive to discourage entry of guilty pleas
as sentence-testing devices. A defendant must demonstrate that manifest
injustice would result if the court were to deny his post-sentence motion to
withdraw a guilty plea.” Commonwealth v. Islas, 156 A.3d 1185, 1188
(Pa.Super. 2017) (citation omitted; emphasis in original)


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            [T]he proper inquiry on consideration of such a
            withdrawal motion is whether the accused has made
            some      colorable  demonstration,     under     the
            circumstances, such that permitting withdrawal of the
            plea would promote fairness and justice. The policy
            of liberality remains extant but has its limits,
            consistent with the affordance of a degree of
            discretion to the common pleas courts.
      Carrasquillo, supra at 1292.
            In Carrasquillo, the Court noted that the determination of
      whether there is a “fair and just reason” to permit the pre-
      sentence withdrawal request should be based on the totality of the
      circumstances attendant at the time of the request, including the
      timing of the assertion of innocence, the statements made by the
      defendant in association with his declaration of innocence, and the
      plausibility of the defendant’s statements in light of the
      evidentiary proffer made by the Commonwealth at the plea
      hearing. See id. at 1286, 1292–93.

Johnson-Daniels, 167 A.3d at 24.

      In the case sub judice, in addressing whether Gathright provided a “fair

and just” reason for the presentence withdrawal of his guilty plea in light of

the holdings of Carrasquillo, the trial court relevantly indicated the following

upon remand:

             In Carrasquillo, the Pennsylvania Supreme Court
      determined that “a bare assertion of innocence” is not sufficient
      justification for the withdrawal of a guilty plea.               The
      Commonwealth asserts that in the instant case [Gathright] made
      a bare assertion of innocence. The Commonwealth correctly notes
      that there is strong evidence against [Gathright]. Because both
      minor victims tested positive for gonorrhea, there is no question
      that the minor victims were raped; there is only a question of
      whether some else was the perpetrator. Both of the victims were
      ready to testify at the time of trial that it was their uncle
      [(Gathright)] that had raped them. The mother of K.B. and the
      father of A.B. were also ready to testify at trial. Two-year-old K.B.



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        had told her mother that “Uncle Ro-Ro[8] hurt [her] pootie cat.”
        A.B., who was ten at the time of the offenses, disclosed to her
        aunt that [Gathright] had inserted his penis into her vagina on two
        occasions and she had seen [Gathright] insert his penis into K.B.’s
        vagina on two occasions. Furthermore, the parents were willing
        to testify that only [Gathright] and [R.F.], the husband of K.B.’s
        mother, had the opportunity to be alone with both K.B. and A.B.
               [Gathright], however, argue[d] [on remand] that he has
        made some colorable demonstration of innocence. [Gathright]
        noted that he filed an alibi defense. . . [Gathright’s] criminal
        accusations do not involve only one incident at a particular date
        and time. A.B. stated that [Gathright] inserted his penis in her
        vagina and K.B.’s vagina two times in the summer of 2008. . .
        [Gathright] does not have a witness that could testify that
        [Gathright] could not have raped K.B. and A.B. because he or she
        was with [Gathright] the entire summer of 2008. “An alibi which
        leaves it possible for the accused to be guilty, is no alibi at all.”
        The notices of alibi witnesses that were filed by [Gathright] are
        not alibi defenses because they still leave open the possibility that
        [Gathright] [ ] commit[ted] the crime.
              Additionally, defense counsel noted that [Gathright] tested
        negatively for gonorrhea. K.B.’s mother began noticing that two-
        year-old K.B. had a vaginal discharge in the summer of 2008. In
        the [sic] September of 2008, K.B. tested positively for gonorrhea.
        It was not until December 2008 that [Gathright] turned himself in
        and tested negative for gonorrhea. A former sexual partner of
        [Gathright] testified at trial, on behalf of the Commonwealth, that
        she tested positive for gonorrhea. The Commonwealth also had a
        witness who would testify that a person may be spontaneously
        cured of gonorrhea by their body’s own mechanisms and that if
        [Gathright] received antibiotics or penicillin this could have cured
        the gonorrhea.
              Finally, [Gathright] noted that the mother of K.B. first
        suspected her husband, [R.F.], as the perpetrator. . .However,
        [R.F.] was also tested for gonorrhea the day after K.B. was
        diagnosed with gonorrhea [and he tested negative].         He
        cooperated with the child abuse investigation, and the
        Department of Human Services cleared him of wrongdoing.
              Also weighing against the plausibility of [Gathright’s]
        innocence claim is the fact that at the guilty plea colloquy
____________________________________________


8   K.B. was prepared to testify that “Uncle Ro-Ro” refers to Gathright.

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      [Gathright] made only one minor objection to the summary of
      facts that supported the plea. After the district attorney read the
      summary of facts that supported the plea, the [trial] court asked
      [Gathright], “do you have any substantial changes or corrections
      or modifications of the facts that she stated?” [Gathright] noted
      that the assistant district attorney misspoke when she stated that
      he had not been tested until September 2008 but he actually had
      not been tested until December 2008. However, [Gathright] did
      not otherwise object to the summary of the facts supporting his
      guilty plea.
            Furthermore, after the guilty plea was entered on May 17,
      2011, [Gathright’s] sentencing was scheduled for August 11,
      2011. [Gathright] waited until August 10, 2011, one day before
      the hearing, before filing a motion to withdraw the guilty plea.
      The fact that [Gathright] waited until the day before sentencing
      to seek to withdraw the guilty plea indicates that [Gathright] was
      not seeking to withdraw the guilty plea because he was innocent
      but that he was withdrawing the guilty plea to postpone
      sentencing.
            Because [Gathright] has not made a plausible innocence
      claim, there is not a fair and just reason for withdrawing the guilty
      plea.

Trial Court Opinion, filed 6/6/17, at 3-6 (citation omitted) (citations to record

omitted) (footnote added).

      In considering the totality of the circumstances, we conclude the trial

court did not abuse its discretion in finding Gathright’s assertion of innocence

was not plausible so as to demonstrate a “fair and just reason” for the

presentence withdrawal of his guilty plea. See Baez, supra. Specifically,

Gathright made his assertion of innocence on the day before the scheduled

sentencing hearing and, in light of the evidentiary proffer made by the

Commonwealth at the plea hearing, the trial court did not abuse its discretion

in finding Gathright’s assertion was not plausible. See id. Further, we note


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the statements made by Gathright at the hearing in association with his

declaration of innocence reveal that Gathright sought to withdraw his guilty

plea, in part, because he was worried about the length of the sentence, which

the trial court might impose in connection with his open guilty plea. N.T.,

6/20/12, at 32. Such concern does not demonstrate a “fair and just reason”

for granting a presentence withdrawal of guilty plea request.

     Having found the trial court did not abuse its discretion in concluding

Gathright’s claim of innocence was not plausible so as to demonstrate a “fair

and just reason” for presentence withdrawal of Gathright’s guilty plea, we,

similar to the trial court on remand, decline to address whether the

Commonwealth     would    suffer   substantial   prejudice   by   permitting   the

withdrawal.

     For all of the foregoing reasons, we affirm.

     Affirmed.

     P.J.E. Bender joins the memorandum.

     Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/18



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