J-S59039-14

NON-PRECEDENTIAL DECISION               SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                        Appellee           :
                                           :
                   v.                      :
                                           :
WILLIAM F. MCKNIGHT,                       :
                                           :
                        Appellant          :   No. 1118 EDA 2014


        Appeal from the Judgment of Sentence Entered March 27, 2014,
                In the Court of Common Pleas of Wayne County,
             Criminal Division, at No(s): CP-64-CR-0000285-2013


BEFORE: SHOGAN, LAZARUS and STRASSBURGER*, JJ.

MEMORANDUM BY: STRASSBURGER, J.:                  FILED OCTOBER 06, 2014

        William F. McKnight (Appellant) appeals from the judgment of

sentence entered March 27, 2014, following his conviction for prohibited

offensive weapons.1 We affirm.

        The trial court outlined the relevant factual and procedural history of

this case as follows.

              On August 6, 2013, [Appellant] was charged with one (1)
        count of Persons Not to Possess, Use, Firearms, Etc., a second
        degree felony [arising from an incident where he threatened the
        neighbors of his paramour, Denise Cassano, with multiple
        firearms.]   Attorney Richard He

        charge stemmed from the service of a search warrant for
        handguns, rifles, and/or shotguns at the [home of Cassano,
        where Appellant] was residing.



1
    18 Pa.C.S. § 908(a).
* Retired Senior Judge assigned to the Superior Court.
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           [A pretrial motion in limine was filed, wherein Appellant
     challenged the validity of the search warrant. Cassano testified

     alleged to have been possessed by Appellant during the incident.
                            denied following a hearing in December
     12, 2013.]

           Prior to trial, [Appellant] advised Attorney Henry that he
     wished to proceed pro se in the matter due to their differences in
     opinion on how the case should be handled. On January 7, 2014,
     [Appellant] filed a Motion to Dismiss Court Appointed Counsel
     and to Proceed Pro Se. The [t]rial [c]ourt issued an order
     granting the motion. Attorney Henry was then appointed as
     stand-by counsel.


     2014 trial term. On January 13, 2014, on the morning of trial,
     plea negotiations between the Commonwealth and stand-by
     counsel for [Appellant] occurred. The Commonwealth amended
     the Information to include the charge of Make/Repair/Sell Etc.
     Offensive Weapons, a first degree misdemeanor, to which
     [Appellant] pled guilty. The [t]rial [c]ourt scheduled sentencing
     for March 27, 2014. One month prior to sentencing, [Appellant]
     filed a Motion to Withdraw Plea of Guilty. The [t]rial [c]ourt
     heard argument on the motion on the date set for sentencing.
                   Motion to Withdraw Plea of Guilty was denied, and
     [Appellant] was sentenced to undergo incarceration in a state
     correctional institut[ion] for a period of not less than eighteen
     (18) months nor more than forty-two (42) months.

Trial Court Opinion, 6/4/2014, at 1-2.

     This timely appeal followed. The trial court did not direct Appellant to

file a concise statement of errors complained of on appeal, and none was

filed. Nonetheless, the trial court issued a 1925(a) opinion based upon the

issues raised by Appellant in his notice of appeal. Appellant now asks this

Court to consider whether the trial court erred in denying his motion to




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permit a guilty plea to be withdrawn should not be upset absent an abuse of

            Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa. Super.

2011) (quotation omitted).

      Rule of Criminal Procedure 591 provides, in relevant part, as follows:



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                                           -part test for determining if

withdrawal should be permitted is well-

                             withdrawal of the plea before sentence should be

freely permitted, unless the p

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


      fundamental right to a trial requires a liberal granting of pre-
      sentence motions to withdraw guilty plea. Yet, it has also
      recognized there is no absolute right to a pre-sentence
      withdrawal of a plea, and has issued clear holdings that the
      denial of such a motion is proper where the evidence before the
      court belies the reason offered. See Commonwealth v.
      Michael, 562 Pa. 356, 755 A.2d 1274 (2000) (holding pre-

      incompetency at time of guilty plea and difficulty              in
      communicating with counsel were not supported by record).

Commonwealth v. Tennison, 969 A.2d 572, 578 (Pa. Super. 2009).




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and just reason for the pre-sentence withdrawal of a guilty plea

Commonwealth v. Miller, 639 A.2d 815, 816 817 (Pa. Super. 1994).

      Instantly, in the habeas corpus petition attached to his motion to



his request to withdraw on his belief that certain charging documents were

falsified by the police. See Pro Se Pre-Trail [sic] Petition for Writ of Habeas




invalid for lack of a warrant control number or a docket number.          See

Exhibits to Pro Se Pre Trail [sic] Petition for Writ of Habeas Corpus,

2/24/2014. Moreover, Appellant alleges that certain witness statements are

missing from one copy of the affidavit.2 Id. Appellant also takes issue with

what appears to be an incomplete draft of the search warrant, claiming it is

invalid for lack of an affiant signature or warrant number. These documents

                                                 in limine.



following exchange occurred, in relevant part:

      The Court: So, you want to withdraw your guilty plea. Why is it
      that you want to withdraw your guilty plea sir?



2
  Appellant attached to his petition what appear to be duplicate draft copies
of the affidavit of probable cause attached to the application for a search
warrant. He noted that in certain of these affidavits the testimony of
witness Kim Tarquini has been deleted. See Exhibits to Pro Se Pre Trail [sic]
Petition for Writ of Habeas Corpus, 2/24/2014.


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     [Appellant]: I found falsified documents by the police, your
     honor, which is now a matter of a petition in the Federal District
     Court[.]



     [Appellant]: The issues?


     inaccurate?


     the Lehigh Township Police[.]

N.T., 3/27/2014, at 4, 5.




                                                                  We agree.



the apparently incomplete rough drafts of the affidavit of probable cause and

search warrant, is not a fair and just reason to grant his request for a

withdrawal. Moreover, as

going to jury trial by pleading guilty [to a reduced charge] on the morning



Although we reiterate that pre-sentence requests to withdraw a guilty plea

should be liberally granted, we find no error in the instant case.

Commonwealth v. Walker, 26 A.3d 525 (Pa. Super. 2011) (holding

                                                                           ir




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                                    withdraw plea, especially in light of fact

that he twice pled guilty, and never expressly asserted innocence).

     Thus, because the court did not abuse its discretion in determining that




     Judgment of sentence affirmed.

     Judge Shogan joins the memorandum.

     Judge Lazarus concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2014




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