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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

LARRY BRICKHOUSE

                         Appellant                  No. 1888 MDA 2015


           Appeal from the Judgment of Sentence October 8, 2015
              In the Court of Common Pleas of Centre County
            Criminal Division at No(s): CP-14-CR-0000395-2015


BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED JULY 22, 2016

      Larry Brickhouse appeals from the judgment of sentence of thirty-

seven days to twelve months imprisonment that was imposed after Appellant

pled guilty to disorderly conduct. We affirm.

      Appellant was charged with simple assault, harassment by subjecting

another person to physical contact, and disorderly conduct.      The events

underlying these charges were as follows.       At 3:30 a.m. on February 8,

2015, a newspaper delivery driver saw Ellsbhet E. Beltran walking on Ghaner

Drive, Patton Township. She was not wearing shoes, was clothed only in a

bra and spandex pants, and was bleeding from her nose. The driver called

police.   Patton Township police spoke with Ms. Beltran who said that she

hurt herself when the vehicle in which she was riding crashed.


* Former Justice specially assigned to the Superior Court.
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      At the same time that the police were summoned to aid Ms. Beltran,

the cashier at a nearby Sheetz store called police to report that a man had

pulled into the parking lot in a Buick with a smashed windshield and that the

male had blood all over his white T-shirt. The cashier was able to provide a

partial license plate number.   The two incidents were related, and police

linked Appellant to the car.

      Patton Township police knew that Appellant lived in an apartment

above Sichuan Bistro restaurant on West College Avenue, State College, and

they asked State College police to check if Appellant was at home. In the

apartment, State College police saw blood and blood splatter and found Ms.

Beltran’s shirt. Items were knocked over, and it appeared as if a domestic

assault had occurred.     Sichuan Bistro’s owner confirmed to police that

Appellant lived above the restaurant, and the owner said that, earlier that

day, he heard Appellant and Ms. Beltran arguing in the apartment and then

“thumping noises.” Affidavit of Probable Cause, 2/8/15, at 1.

      Meanwhile, Patton Township police took Ms. Beltran to Mount Nittany

Medical Center. Ms. Beltran had a bloody nose and appeared to have been

struck in the face.   Ms. Beltran admitted that she had not been in a car

accident and that, instead, she had argued with Appellant. Ms. Beltran told

police, “[Appellant] physically assaulted me.” Id. at 2.

      While Patton Township police were attending to Ms. Beltran, State

College police searched for Appellant, who was found in his parked Buick

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sleeping near Ms. Beltran’s apartment. Appellant was wearing a ripped and

bloody T-shirt and had scratch marks on his right arm and neck. Appellant

acknowledged that he and Ms. Beltran had argued and, while he denied

striking her, he admitted that his car had not been involved in an accident.

      On June 1, 2015, Appellant pled guilty to the disorderly conduct

offense, graded as a third-degree misdemeanor, and the other charges were

withdrawn.    The Commonwealth also agreed to recommend a sentence of

time served to twelve months.        Before sentencing, Appellant moved to

withdraw that plea on the grounds that he was innocent in that Ms. Beltran

had “some serious credibility issues.” N.T. Hearing, 8/6/15, at 2. Appellant

maintained that he did not strike Ms. Beltran and that, instead, she was

injured when she “slammed the gear shift into park slamming her head

against the windshield.”   Id.   The motion was denied, and, on October 8,

2015, the court sentenced Appellant to thirty-seven days to twelve months

imprisonment and immediately released him on parole. This timely appeal

followed, and Appellant presents this issue: “Did the sentencing judge

commit an error of law in denying [Appellant’s] motion to withdraw his guilty

plea prior to sentencing?” Appellant’s brief at 5.

      Under Pa.R.Crim. 591, a trial court may, in its discretion, allow a

defendant to withdraw a guilty plea at any time before sentence is imposed.

Pa.R.Crim.P. 591(A) (“At any time before the imposition of sentence, the

court may, in its discretion, permit, upon motion of the defendant, or direct,

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sua sponte, the withdrawal of a plea of guilty or nolo contendere and the

substitution of a plea of not guilty.”). Our standard of review in this context

is as follows.

             The standard of review that we employ in challenges to a
      trial court's decision regarding a presentence motion to withdraw
      a guilty plea is well-settled. “A trial court's decision regarding
      whether to permit a guilty plea to be withdrawn should not be
      upset absent an abuse of discretion. An abuse of discretion
      exists when a defendant shows any ‘fair and just’ reasons for
      withdrawing his plea absent ‘substantial prejudice’ to the
      Commonwealth.” Commonwealth v. Pardo, 35 A.3d 1222,
      1227 (Pa.Super. 2011) (quoting Commonwealth v. Prysock,
      972 A.2d 539, 541 (Pa.Super. 2009); citing Commonwealth v.
      Anthony, 504 Pa. 551, 475 A.2d 1303, 1308 (1984)). In its
      discretion, a trial court may grant a motion for the withdrawal of
      a guilty plea at any time before the imposition of sentence.
      Pa.R.Crim.P. 591(A).

Commonwealth v. Elia, 83 A.3d 254, 261–62 (Pa.Super. 2013).

      In Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973), and

Commonwealth v. Randolph, 718 A.2d 1242 (Pa. 1998), the Court

articulated that a defendant’s bare assertion of innocence, standing alone,

required that a defendant be permitted to withdraw his guilty plea if

sentence has not been imposed. The strictures of Forbes and Randolph,

mandating the grant of a pre-sentence motion to withdraw a guilty plea

upon a bald assertion of innocence, were abrogated by the simultaneously-

issued pronouncements in Commonwealth v. Carrasquillo, 115 A.3d 1284

(Pa. 2015), and Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015). In

Carrasquillo, the Court stated that a “bare assertion of innocence is not, in



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and of itself, a sufficient reason to require a court to grant” a pre-sentence

request to withdraw a guilty plea. Carrasquillo, supra at 1285 (emphasis

added).

      In Carrasquillo, the trial court denied the defendant’s pre-sentence

request to withdraw his guilty plea based upon a finding that his claim of

innocence, which was premised upon the existence of vast governmental

scheme to frame him, was implausible and insincere. In determining that

the defendant’s avowal of innocence was not credible, the trial court relied

upon the evidence of guilt available to convict him.

      Our High Court in Carrasquillo reinforced that the trial court has the

discretion to determine whether withdrawal will be granted as well as the

precept that “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.”       Id. at 1292.     However, Carrasquillo

retracted the bright-line approach that permitted withdrawal based upon a

bald and unsupported claim of innocence.         It was “persuaded by the

approach of other jurisdictions which require 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.”       Id.   Our High Court

announced that “the proper inquiry on consideration of such a withdrawal

motion is whether the accused has made some colorable demonstration,

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under the circumstances, such that permitting withdrawal of the plea would

promote fairness and justice.” Id.; Hvizda, supra (upholding trial court’s

refusal to allow pre-sentence withdrawal of guilty plea where denial was

premised upon a finding of implausibility of defendant’s claim of innocence,

which was unsupported, and upon evidence of guilt).

      In the present case, the trial court determined that Appellant asserted

a “bare assertion of innocence” and that he did not level a plausible and

“colorable demonstration that fairness and justice would be promoted by”

allowing the plea to be withdrawn. Trial Court Opinion, 9/14/15, at 2. We

conclude that the trial court did not abuse its discretion in rejecting

Appellant’s avowal of innocence as implausible.

      Appellant suggests that the victim was not credible when she blamed

her injuries on an assault by Appellant and that she was injured in a car

accident. Appellant, however, overlooks substantial evidence supporting Ms.

Beltran’s statement to police at the medical facility that Appellant struck her.

When arrested, Appellant had blood on his T-shirt and denied that his car

had been in an accident. On the night of the incident, police found blood,

blood spatters, and Ms. Beltran’s shirt in Appellant’s apartment, which was

in disarray.   Appellant’s landlord overheard Appellant and Ms. Beltran

arguing and then heard thumping noises. Given this evidence, the trial court

was justified in rejecting Appellant’s unsupported suggestion that he was




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innocent in that Ms. Beltran was not credible when she said that her bloody

nose and facial injuries were caused by Appellant.

     Judgment of sentence affirmed.

     Judge Shogan joins the memorandum.

     Justice Fitzgerald concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




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