J-S86010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RICHARD A. COOK                            :
                                               :
                      Appellant                :   No. 5 WDA 2016

           Appeal from the Judgment of Sentence November 3, 2015
               In the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-CR-0002010-2014



BEFORE: GANTMAN, P.J., MOULTON, J., STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED FEBRUARY 17, 2017

        Appellant Richard A. Cook appeals the judgment of sentence entered

in the Court of Common Pleas of Cambria County on November 3, 2015,

following his guilty plea to one count each of criminal homicide, third-degree

murder, and Firearms not to be carried without a license.1 We affirm.

        The trial court briefly set forth the facts of this case as follows:


               The testimony at the preliminary hearing established that
        at approximately 1:30 a.m. on July 13, 2014, [Tyrone] Williams
        arrived at Building 28 at the Oakhurst Homes looking for a
        female friend. He approached a group that included [Appellant]
        [Fidel L.] Cosby and [Jaquan] Watson that was gathered outside
        the building. Williams was informed by someone in the group
        where to locate his friend and he left for that location. Williams
        returned shortly thereafter and for reasons that are unclear had
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1
    18 Pa.C.S.A. §§ 2501(a), 6106(a)(1), respectively.



*Former Justice specially assigned to the Superior Court.
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      an altercation with one person in the group and was struck by
      that person or someone else in the group. Williams then walked
      away toward Grandinetti Avenue. While Williams was standing
      near Grandinetti Avenue, [Appellant], Cosby, and Watson drew
      handguns and began firing at him.
             Williams fled toward Daniel Street while the three
      continued firing. Williams’ body was eventually found a short
      distance up a hill near Daniel Street. An autopsy revealed that
      Williams was struck multiple times with rounds from different
      caliber handguns with the fatal shot being a back to front
      through and through that passed his heart and lung. This round
      was never recovered. Eyewitnesses stated that Watson was
      firing a semi-automatic handgun with silver on top, [Appellant]
      was firing a revolver, and Cosby was firing a larger semi-
      automatic handgun with a laser sight. Detectives from the
      Johnstown Police Department (JPD) were eventually able to
      locate and arrest all three suspects.        During interviews
      [Appellant] admitted to being present at the scene, to
      possessing a .22 caliber revolver that night, to seeing Watson
      pull a handgun, to seeing Watson firing at Williams, and to
      drawing his own revolver. [Appellant] stated that he did not
      recall firing his weapon that night.

Trial Court Opinion, filed 3/1/16, at 2-3.

      On September 22, 2015, the day upon which jury selection was

scheduled to begin, Appellant and his codefendants entered guilty pleas and

agreed to waive their right to withdraw their pleas.       N.T. Guilty Plea,

9/22/15, at 15. Sentencing was scheduled for November 3, 2015; however,

on November 2, 2015, Appellant filed a motion to withdraw his guilty plea

pursuant to Pa.R.Crim.P. 591 based upon his allegation that “he is innocent

and that he has a colorable demonstration of innocence under these

circumstances, since there is no ballistic evidence tying him to the homicide

and he did not give an inculpatory statement that he fired any shots on the




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night of the homicide.” See Motion to Withdraw Guilty Plea, filed 11/2/15,

at ¶ 6.

       On November 3, 2015, the trial court denied Appellant’s motion and

sentenced him to a period of incarceration of one hundred ninety-two (192)

months to four hundred eighty (480) months in prison on the third-degree

murder conviction and to a consecutive term of twenty-four (24) months’ to

forty-eight (48) months’ incarceration on the firearms conviction. N.T.

Sentencing, 11/3/15, at 48-49.           Appellant filed a post-sentence motion to

modify his sentence, and following a hearing, the trial court denied the same

on December 22, 2015.

       On December 24, 2015, Appellant filed a timely notice of appeal. 2 On

December 28, 2015, the trial court ordered Appellant to file a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Appellant filed the same on January 8, 2016, wherein he raised

three claims. The trial court filed its opinion pursuant to Pa.R.A.P. 1925(a)

on March 1, 2016.

       Appellant presents the following two issues for our review:

       I.     Should the trial court have found that there was a “fair and
              just reason” for withdrawal of the guilty plea where there
              was a plausible and colorable demonstration of innocence?

       II.    Did the trial court err in allowing the Commonwealth to
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2
  Codefendant Jaquan Watson’s appeal from his judgment of sentence is
pending in this Court. See Commonwealth v. Watson, 9 WDA 2016.



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            join the defendants for trial where it did not file its motion
            until over a half-year after it was supposed to?

Brief for Appellant 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 his 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, sua sponte, the withdrawal of a plea of guilty or nolo

contendere and the substitution of a plea of not guilty.”). The standard of

review that we employ in challenges to a trial court's decision regarding a

pre-sentence 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. 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. 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. The policy underlying this liberal
      exercise of discretion is well-established: The trial courts in
      exercising their discretion must recognize that before judgment,
      the courts should show solicitude for a defendant who wishes to
      undo a waiver of all constitutional rights that surround the right
      to trial—perhaps the most devastating waiver possible under our
      constitution. In [Commonwealth v.]Forbes, [299 A.2d 268
      (Pa. 1973)] our Supreme Court instructed that, 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.




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Commonwealth v. Elia, 83 A.3d 254, 261–262 (Pa.Super. 2013) (internal

quotations and citations omitted).             In addition, our Supreme Court in

Commonwealth v. Carrasquillo, 631 Pa. 692, 115 A.3d 1284 (2015)

recently reaffirmed the Forbes ruling, stating:

       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.

Carrasquillo, 631 Pa. at 704, 115 A.3d at 1291–1292 (footnote omitted).

       In Carrasquillo the Supreme Court also declared “a defendant's

innocence claim must be at least plausible to demonstrate, in and of itself, a

fair and just reason for pre[-]sentence withdrawal of a plea.” Id. at 1292.3

The Court concluded that “a per se approach” to allowing pre-sentence

withdrawal of a guilty plea on a mere assertion of innocence “is

unsatisfactory.” Id.       It further noted that in evaluating a pre-sentence

request to withdraw a guilty plea, courts could consider the timing of the

innocence claim. Id., citing Forbes, 299 A.2d at 272 (“Obviously, the

appellant, by his assertion of innocence—so early in the proceedings, i.e.,



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3
  The Supreme Court arrived at the same conclusion in a companion case,
Commonwealth v. Hvizda, ___ Pa. ____, 116 A.3d 1103 (2015), decided
the same day.



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one month after the initial tender of a plea,—offered a ‘fair and just’ reason

for withdrawal of the plea.”) (brackets omitted).

      With this legal standard in mind, we turn to Appellant’s first contention

that the trial court abused its discretion in denying his pre-sentence motion

to withdraw his guilty plea. Appellant divides his argument on this issue into

three sections.     Appellant initially engages in a discussion of legal

pronouncements prior to Carrasquillo and Hvizda and then relates how he

should have been entitled to withdraw his plea thereunder.            Appellant

concludes by urging this Court to remand this matter for a determination of

the second requirement for withdrawal of his plea, namely, a lack of

substantial prejudice to the Commonwealth.          Essentially, Appellant avers

that his “plausible assertion of innocence” lay in the fact that the

Commonwealth’s case was “premised on eyewitness testimony,” he “did not

confess” and there was “no definitive ballistic evidence proving he shot and

killed Williams.” Brief for Appellant at 14. Appellant points out that he “did

not make any comments at the guilty plea that belied his assertion of

innocence.” Id. at 21. Interestingly, while Appellant affirmatively states the

voluntariness of his plea is not at issue, Brief for Appellant at 10, he later

maintains he entered “a last-second guilty plea under an extraordinarily

pressure-filled situation.” Id. at 15.

      In considering this issue, the trial court stressed that Appellant had

indicated when entering his guilty plea he was aware jurors and all parties


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were ready for trial and understood he was, therefore, giving up his right to

withdraw his plea.    The trial court explained it informed Appellant that it

would not grant such a motion were Appellant to file one “between now and

at the time of [his] sentencing.” Trial Court Opinion, filed 3/1/16, at 4 citing

N.T. Guilty Plea, 9/22/15, at 15. Accordingly, the trial court reasoned that

since Appellant had waived his right to withdraw his guilty plea, it did not err

in denying his subsequent motion.          In the alternative, the trial court

asserted that even if Appellant had not waived his right to withdraw his plea,

he could not have been entitled to do so for his failure to present a plausible

claim or colorable demonstration of innocence as is required under

Carrasquillo and Hvizda. The trial court reasoned that:

      [b]oth the evidence presented at the preliminary hearing and
      [Appellant’s] own statements place him at the scene of the
      murder with a weapon in his hand. Eyewitness testimony was
      that [Appellant], along with Cosby and Watson were firing at
      Williams as he fled. Viewing [Appellant’s] claim against the
      totality of the evidence available reveals that his claim of
      innocence is implausible under the factual circumstances of this
      case.

Trial Court Opinion, filed 3/1/16, at 7.

      Initially, we note that this Court has held a trial court abused its

discretion when it found a defendant waived his right to withdraw a guilty

plea prior to sentencing where the defendant had entered an open plea and

later asserted his innocence, and where there was no alleged prejudice to

the Commonwealth if the plea were to be withdrawn. Commonwealth v.

Pardo, 35 A.3d 1222, 1224 (Pa.Super. 2011). We further have held that in


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keeping with the dictates of Pa.R.Crim.P. 590 and 591 and our Supreme

Court's liberal standard of granting pre-sentence requests to withdraw guilty

pleas, a trial court may not “curtail a defendant's ability to withdraw his

guilty plea via a boilerplate statement of waiver in a written guilty plea

colloquy.” Id.

       In light of the foregoing, we acknowledge the Commonwealth’s

position that the waiver in this case was not a boilerplate waiver but, rather,

was attendant to jury selection, Brief for Appellee at 12. However, relying

on the most recent pronouncements of our Supreme Court in Carrasquillo

and Hvizda, we find no abuse of discretion on the part of the trial court in

concluding in the alternative that Appellant failed to assert a plausible claim

of innocence, let alone proffer any fair and just reason for withdrawing his

guilty plea.4

       Appellant entered his guilty plea on September 22, 2015, yet he did

not file his motion to withdraw his plea until 3:52 p.m. on November 2,

2015, the day before his scheduled sentencing and after a presentence

investigation report had been provided to the trial court.      Prior thereto,

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4
   “It is well-settled that an appellate court may affirm the decision of the
trial court if there is any basis on the record to support the trial court's
action. This is so even if we rely upon a different basis in our decision to
affirm.” Commonwealth v. Harper, 611 A.2d 1211, 1213 n. 1 (Pa.Super.
1992) (citations omitted).




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Appellant prepared a written colloquy and the trial court conducted an

extensive oral colloquy at which time Appellant admitted, inter alia, he had

caused the death of Tyrone Williams, was entering his plea voluntarily after

discussing all potential defenses with his counsel, and was aware that trial

would commence were he to choose to forego a guilty plea.                    N.T.

Sentencing, 9/22/15, at 15-20.

      Appellant next maintains the trial court erred in granting the

Commonwealth’s motion to consolidate the trials of Appellant and his

codefendants. Appellant relies upon Pa.R.CrimP. 582(B)(2) to support his

claim that the Commonwealth’s failure to file a motion for consolidation as

part of an omnibus pretrial motion within thirty days of formal arraignment

makes it untimely and, therefore, the motion should have been denied on

that basis alone. Brief for Appellant at 25-27.

      Initially, we note it is well-settled that the decision to join or sever

offenses for trial is within the trial court’s discretion and will not be reversed

on appeal absent a manifest abuse thereof or a showing of prejudice or clear

injustice to the defendant.    Commonwealth v. Wholaver, 605 Pa. 325,

351, 989 A.2d 883, 898 (2010).        Rule 582(B)(2) states that a motion to

consolidate “must ordinarily be included in the omnibus pretrial motion.”

Pa.R.Crim.P. 582(B)(2) (emphasis added). The use of the word “ordinarily”

plainly indicates that while motions to consolidate should normally be

included in an omnibus pretrial motion, the rule is not absolute, and there

are certain circumstances where a motion to consolidate will be considered

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outside of an omnibus motion. This Court will not make a rule absolute when

the plain language does not purport to do so; thus, under the facts

presented herein, where the Commonwealth filed its motion several weeks

before trial and each pretrial proceeding involved all three defendants, we

find the trial court did not err by considering the Commonwealth’s motion.

          The timeliness of the Commonwealth’s motion aside, Appellant’s

challenge is moot as Appellant and his codefendants entered guilty pleas

prior to trial; thus, there was no joint trial at which Appellant may have been

prejudiced or subjected to a manifest injustice. Indeed, Appellant nowhere

alleges he was, in fact, prejudiced by the trial court’s decision to consolidate

the matters for trial. Appellant’s second claim, therefore, does not warrant

relief.

          Judgment of sentence affirmed.

          PJ Gantman and Judge Moulton concur in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2017




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