J-S46036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 LESLIE ELLIS                               :
                                            :
                     Appellant              :   No. 949 EDA 2017


           Appeal from the Judgment of Sentence, April 29, 2016,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0010565-2014.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED OCTOBER 17, 2018

      Leslie Ellis appeals the judgment of sentence imposed following his

conviction for third degree murder and related offenses. He claims the trial

court erred in denying his motion to withdraw his guilty plea. We affirm.

      On May 13, 2014, Ellis became involved in a physical altercation with

Jonathan Perez and the victim, Craig Thomas. Perez’s parents intervened in

the commotion and broke up the fight. Once the men were separated, Ellis

drew a concealed revolver and fired four times in Thomas’s direction, striking

Thomas once in the back. Ellis fled from the scene and was arrested a few

days later. At the time of this incident, Ellis was ineligible to possess a firearm

because of a prior conviction for intent with possession to deliver. Ellis was

charged with Thomas’s murder and crimes, including possession of a firearm

by a prohibited person.
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      Ellis waived his right to a jury trial on these charges. During the bench

trial that began on July 20, 2015, the Commonwealth proved, through

stipulated testimony of a medical examiner, that Thomas died as a result of

the gunshot wound to his back.

      On July 21, 2015, the second day of trial, Ellis elected to terminate the

proceedings by pleading guilty to one count each of third degree murder (18.

Pa.C.S.A. § 2502), possession of a firearm by a prohibited person (18

Pa.C.S.A. § 6105), and possessing an instrument of crime (18 Pa.C.S.A. §

907). The court found Ellis accepted the guilty plea of his own free will. N.T.,

7/21/15, at 8-9. The court also found Ellis agreed to the substance of what

happened on May 13, 2014, as presented by the prosecutor. Id. at 16-17,

18.

      Prior to sentencing, Ellis filed pro se motions to withdraw his guilty plea

and represent himself. On December 4, 2015, after a hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the court granted

defendant’s motion to proceed pro se.        On December 10, 2015, after an

evidentiary hearing, the Court denied Ellis’ motion to withdraw his guilty plea.

At Ellis’ request, the court appointed counsel to represent Ellis for purposes of

sentencing.

      At the sentencing hearing on April 29, 2016, the trial court imposed an

aggregate sentence of twenty-two and a half to fifty years’ incarceration at

the state prison. Trial Court Opinion, 6/23/17, at 1.




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       Ellis filed an untimely motion for reconsideration on May 11, 2016, which

was denied on May 23, 2016. Then, on February 2, 2017, Ellis filed a PCRA

petition, through his counsel, seeking reinstatement of his appellate rights.

On March 1, 2017, the court granted Ellis’ PCRA petition and reinstated Ellis’

direct appeal rights. Trial Court Opinion, 6/23/17, at 1-2. Ellis then appealed

from the judgment of sentence entered by the Court in April 2016.

       Ellis’ sole issue raised on appeal is:

          A. Whether the court erred in denying [Ellis’] motion to
             withdraw his guilty plea prior to sentencing and where
             the Commonwealth would not be prejudiced?

Ellis’ Brief at 5.

       The standard of review we employ for challenges to a trial court’s denial

of a motion to withdraw a guilty plea is well settled. The trial court’s decision

to deny the motion will only be upset if the trial court committed an abuse of

discretion. Commonwealth v. Elia, 83 A.3d 254, 261 (Pa. Super. 2013).

Abuse of discretion must amount to more than an error in judgment and will

not be found unless the trial court’s judgment was manifestly unreasonable,

or was the result of partiality, bias, or ill-will. Commonwealth v. McNabb,

819 A.2d 54, 55 (Pa. Super. 2003).

       Generally speaking, Pennsylvania’s Rules of Criminal Procedure give the

trial court discretion to allow a criminal defendant to withdraw a guilty plea

and substitute a not guilty plea “[a]t any time before the imposition of

sentence.” Pa.R.Crim.P. Rule 591(A). However, there is no absolute right to




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withdraw a guilty plea. Commonwealth v. Carrasquillo, 115 A.3d 1284,

1285 (Pa. 2015)

       Ellis relies on Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973) as

the standard the court must follow when considering the withdrawal of a guilty

plea. In Forbes, our Supreme Court used a two-prong test and allowed a

defendant to withdrawal a guilty plea before sentencing so long as there was

a fair and just reason and the Commonwealth would not suffer substantial

prejudice.    Id. at 271.

       Our Supreme Court narrowed the first prong of that test in 2015, in the

companion cases of Carrasquillo, supra, and Commonwealth v. Hvizda,

116 A.3d 1103 (Pa. 2015).1 In Carrasquillo, the court acknowledged that

requiring any claim of innocence to serve as a basis for a pre-sentence

withdrawal of a guilty plea was unsatisfactory because it did not allow the

court to consider the underlying facts of the case. The court then concluded

that “a bare assertion of innocence” was not, “in and of itself, a sufficient

reason to require a court to grant a presentence request to withdraw a guilty

plea.” Carrasquillo, 115 A.3d at 1285. Instead, the court held, a defendant

must demonstrate that his claim of innocence is, at least, plausible under the

facts of the case:

          [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
____________________________________________


1 Neither of these cases addressed the second prong of the test, thus, the
standard for that prong, announced in Forbes, remains intact.

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            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.

Id at 1292 (internal citations omitted).

         Here, the trial court concluded, that Ellis failed to meet both prongs of

the two-prong test to withdraw his guilty plea: Ellis “failed to establish a fair

and just reason for withdrawal, and the Commonwealth would have been

substantially prejudiced had the motion been granted.” Trial Court Opinion,

6/23/17, at 3.

         With respect to the first prong, we find the trial court did not abuse its

discretion.     In his motion to withdraw his guilty, Ellis simply made a bare

assertion of innocence.      He did not present any evidence to support that his

claim of his innocence was plausible under the facts; he simply stated that he

did not “pull the trigger.” N.T., 12/04/15, at 23. At the hearing on the motion,

the Commonwealth presented a plethora of evidence which showed this was

not a colorable claim. Mr. Peter Lim, the Assistant District Attorney, said that

two individuals saw Ellis fire the gun, and these individuals had a clear view

of Ellis at the time so there could be no mistaking his identity. N.T., 12/04/15,

at 24.

         Mr. Michael Giampietro, Ellis’ public defender at the time the guilty plea

was entered, also testified that Ellis initially wanted to claim that the shooting

occurred in self-defense. As the trial court noted, this justification defense

necessarily involved an admission that defendant did the killing, and squarely


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contradicted Ellis’s claim in his motion that he was not the shooter. Trial Court

Opinion, 6/23/17 at 4.

       Giampietro testified that he told Ellis the claim of self-defense here was

not workable; the victim was shot in the back from a distance too great for a

self-defense claim to be successful. Once Giampietro informed Ellis that self-

defense would not be successful, Giampietro said Ellis then began claiming he

was innocent and did not commit the shooting.      N.T., 12/10/15, at 32-33.

      Additionally, Ellis gave an incriminating statement to police following the

shooting, placing him at the scene in the location where Ellis said the shooter

was positioned.    N.T., 12/10/15, at 34.       An additional witness for the

Commonwealth also indicated that he saw Ellis running from the scene with

his arm in such a way that he may have been carrying a firearm.             N.T.,

12/10/15, at 34.

      The trial court found Giampietro to be completely credible.             His

testimony established that defendant was not coerced into pleading guilty and

that his claim of innocence was completely implausible.                Compare

Commonwealth v. Islas, 156 A3d 1185 (Pa. Super. 2017) (allowing the

withdrawal of a guilty plea where the defendant proffered a colorable or

plausible claim of innocence).   We find no abuse of discretion on the part of

the trial court for denying Ellis’ motion to withdraw his guilty plea, when Ellis

offered no plausible claim of innocence.

      Since Ellis did not meet the first prong of the two-part test for withdrawal

of a guilty plea, we need not address the trial court’s decision with respect to

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the second prong of the test, i.e. whether the withdrawal would result in

substantial prejudice to the Commonwealth. However, we will briefly address

this issue only to the extent the court relied on Commonwealth v. Whelan,

392   A.2d   1363    (Pa.   1978)    (plurality)   cert.   denied,   Whelan    v.

Pennsylvania, 440 U.S. 926 (1979), to reach its conclusion that the

Commonwealth would suffer prejudice if the withdrawal were allowed.

      In deciding this issue, the trial court observed, “the defendant pled

guilty on the second day of his trial, after the Commonwealth had made an

opening statement and begun the presentation of evidence.”            Trial Court

Opinion, 6/23/17 at 5. “Under these circumstances,” the trial court held, “the

Commonwealth has been substantially prejudiced by defendant’s preview of

its case.” Id. (citing Whelan, 392 A.2d at 1364).

      We note that Whelan was a plurality decision and therefore did not

provide a bright line test for substantial prejudice. We remind the trial court

that plurality opinions, by definition, establish no binding precedent for future

cases. See e.g., Commonwealth v. Bethea, 828 A.2d 1066, 1073 (Pa.

2003); Hoy v. Angelone, 720 A.2d 745, 750 (Pa. 1998); see also Interest

of O.A., 717 A.2d 490, 496 n. 4 (Pa. 1998) (Opinion Announcing Judgment

of Court by Cappy, J.) (“While the ultimate order of a plurality opinion, i.e. an

affirmance or reversal, is binding on the parties in that particular case, legal

conclusions and/or reasoning employed by a plurality certainly do not

constitute binding authority.”)     A court may rely on a plurality decision as




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persuasive authority. Here, it is not clear from the citation whether the trial

court relied on Whelan as binding or persuasive authority.

      In Whelan, the defendant was charged with criminal homicide. After a

week of jury trial, where the Commonwealth had placed its case in chief into

evidence and Whelan and his co-defendant had placed their cases into

evidence, Whelan pleaded guilty to the charge of being an accessory to

murder. Whelan later sought to withdraw his guilty plea. Under those facts,

a plurality of the Supreme Court stated “[a]appellant pleaded guilty after the

Commonwealth presented its case. When a defendant pleads guilty after the

Commonwealth has commenced its case, we hold that the Commonwealth will

be substantially prejudiced” if the defendant is allowed to withdraw his plea.

Whelan, 392 A.2d at 1364. Although the language of Whelan seems to adopt

a bright line test that prejudice occurs “after the Commonwealth has

commenced its case,” under the facts, the Commonwealth had actually

concluded its entire case.

      Again, we need not, and therefore will not, decide the merits of this

issue. We simply remind the trial court that plurality decisions are not binding

authority.

      In sum, we find no abuse of discretion on behalf of the trial court in

denying Ellis’ motion to withdraw his guilty plea because Ellis offered no

plausible claim of innocence. The court’s judgment was manifestly reasonable

under the circumstances, and was not motivated by partiality, bias or ill-will.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/18




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