J-S44025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDREW DAVID HITES                         :
                                               :
                       Appellant               :   No. 201 WDA 2019

        Appeal from the Judgment of Sentence Entered January 8, 2019
     In the Court of Common Pleas of Venango County Criminal Division at
                       No(s): CP-61-CR-0000142-2018


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED NOVEMBER 26, 2019

        Andrew David Hites appeals from the judgment of sentence entered

following his plea of guilty1 to persons not to possess a firearm and recklessly

endangering another person.2 Hites argues the trial court erred in denying his

motion to withdraw his guilty plea. We affirm.

        According to the affidavit of probable cause, Hites sent a video to his

ex-girlfriend on February 16, 2018, via text message. The video was recorded

by Hites, and showed Hites shooting a gun at a ceramic baseball trophy inside
____________________________________________


1 Although the transcript reflects that Hites entered a plea of nolo contendere
rather than guilty, Hites has not challenged the court’s entry of a guilty plea.
Moreover, the difference had no bearing on our review of Hites’ motion to
withdraw his plea. See Pa.R.Crim.P. 591 (providing same standard for
withdrawal of plea of guilty or nolo contendere), 590 comment (stating a court
accepting a plea of guilty or nolo contendere must elicit, inter alia, whether
the defendant understands the nature of the charges and the factual basis for
the plea).

2   18 Pa.C.S.A. §§ 6105(a)(1) and 2705, respectively.
J-S44025-19



his bedroom in his mother’s residence. The police arrested Hites, who agreed

to a recorded interview. In the interview, Hites “related in essence that he

sent a video to [his ex-girlfriend] around 10:00 to 10:30 pm yesterday

(02/16/18) and claimed he sent the video within about 20 minutes of making

it.” Affidavit of Probable Cause, 2/17/18, at 5. “When asked what he was

wearing when he made the video, he stated the ‘same thing I have on now.’

Hites also related during the interview that his mother . . . was present in the

residence when the video was made.” Id. The affidavit alleged that Hites’

criminal history included a conviction for a second-degree felony. Id.

       At Hites’ preliminary arraignment in September 2018, his attorney

requested that the court permit Hites to enter a plea of “no contest.” N.T.,

Guilty Plea, 9/24/18, at 23.3 On the record, Hites agreed that there would be

a reasonable likelihood that a jury could find him guilty if the Commonwealth

presented evidence that “an individual received a text message in the form of

a video that showed [Hites] lifting a firearm and firing it in a residence”; Hites’

“mother was in the residence somewhere . . . on that date and time when the

. . . message was sent”; and Hites had previously been convicted of a second-

degree felony. Id. at 30-31. The court instructed Hites that to prove him

guilty, the Commonwealth would have to present evidence that Hites had

previously been convicted of a second-degree felony, and possessed a firearm

at his mother’s residence on February 16 and 17, 2018. The court also advised
____________________________________________


3 See also N.T., Guilty Plea, 9/24/18, at 30 (Commonwealth attorney
acknowledging “no contest” plea).

                                           -2-
J-S44025-19



him that the Commonwealth “would have to . . . show the date, time, and

place [Hites] discharged the firearm inside of the residence in which there was

another person present[.]” Id. at 31-32. When asked whether he understood

the elements of the crimes to which he was pleading guilty, Hites responded,

“Yes.” Id. at 32. The court scheduled sentencing for December 10, 2018.4

       Four days before sentencing was set to occur, Hites filed a motion to

withdraw his guilty plea. In the motion, Hites asserted “that he was not aware

of the nature of certain discovery critical to his alleged offenses, and that his

pleas were not, therefore, intelligently and voluntarily tendered.” Motion to

Withdraw Guilty Plea, 12/6/15, at 1 ¶ 6.

       The court held a hearing on the motion. Hites testified that he asked to

withdraw his plea because he had recently seen, for the first time, the video

giving rise to the charges. According to Hites, when the police interviewed

him, they did not show him the subject video, and Hites believed they were

questioning him about a different video. N.T., 12/14/18, at 7-8. Hites testified

he had thought the police were asking him about a video he had sent on

Valentine’s Day, which he had fabricated on his smartphone.5 Id. at 11, 26.
____________________________________________


4 In exchange for Hites’ plea, the Commonwealth agreed to recommend at
sentencing that the court sentence Hites to concurrent sentences, with an
aggregate minimum sentence of 30 months’ incarceration, and to waive any
objection to Hites’ eligibility for the Recidivism Risk Reduction Incentive
Program.

5 Hites described the video as “a cartoon that you make up in your phone with
the Smartphone applications,” and as a “fiction. It’s not a factual thing. It was



                                           -3-
J-S44025-19



Hites did not describe the content of the alleged fabricated video. Hites denied

sending a video other than the one he had fabricated. Id. at 12. Hites’ attorney

clarified that it was now Hites’ “position that that’s not him in the [subject]

video.” Id. at 23. Hites’ attorney stated that the delay between the entry of

Hites’ guilty plea and his motion to withdraw was due to the time the attorney

needed to acquire and transmit the electronic discovery materials to Hites. Id.

at 19.

         Hites also asserted that because he had been unable to view the subject

video prior to the entry of his guilty plea, due to jail policies regarding

electronic discovery, he had believed he was pleading guilty based on the

contents of the fabricated video. Id. at 7-8. Hites asserted that he had not

protested the charge for possession of a firearm at the guilty plea hearing

because a firearm had been present in his residence, and he had admitted to

the firearm’s whereabouts during a subsequent interview with the police. Id.

at 9. However, Hites claimed that after he saw the video giving rise to the

charges, it “g[ave] different meaning to what the charges are that I had

figured out in my mind with possession, because it was in the house. I was

like, --- okay. And, then after I had seen the video, when they physically put

it in my hand, and . . . allegedly fired the weapon, that is absolutely not what


____________________________________________


like movie clips. . . . There’s different apps on the phone where you can take
little pieces of a movie clip, add a little piece from this other spot with like
words and emoji’s and whatnot.” N.T., 12/14/18, at 11, 26.



                                           -4-
J-S44025-19



happened in that. I did not plead to that.” Id. at 12-13.6 Hites also argued

that he had not learned the legal definition of “possession” until accessing the

prison law library. Id. at 27. Hites agreed that he had pled guilty to

“endangering somebody by discharging a firearm.” Id. at 10. However, Hites

simultaneously protested, “that wasn’t the facts,” and “finding out what the

evidence really was[,] was two different things.” Id. at 10-11, 13.

       The Commonwealth argued that there was no way Hites had been

confused about the contents of the video during either his interview with the

police or his guilty plea. The Commonwealth stated that the subject video was

filmed in first-person, and Hites had admitted during the police interview that

he was wearing the same clothing as he had been wearing in the video giving

rise to the charges, which would not have made sense if Hites had believed

they were discussing a fabricated video. Id. at 20-22, 23-24.7 According to
____________________________________________


6Hites also stated, “The factual basis of me pleading to Possession of a Firearm
was the fact that, yes, it was an item that was in the home I was staying at.
Possession after I had seen the video is [an] altogether different scenario than
what I was considering.” N.T., 12/14/18, at 9.

7 Although the Commonwealth argued that Hites had admitted to wearing the
same clothing as he had been wearing “in” the video giving rise to the charges,
the affidavit of probable cause states Hites admitted to wearing the same
clothing during the video as he was wearing when he had “made” the video
the previous day. In other words, the affidavit of probable cause does not
state that Hites admitted to being “in” a video. However, at the withdraw
hearing, the Commonwealth argued, “The video . . . shows somebody in the
first person wearing . . . the exact same clothes that [Hites] was wearing when
they actually interviewed him. He admitted that --- that he was wearing the
same clothes in that video as he was wearing in the interview.” N.T.,
12/14/18, at 23. By arguing that Hites had admitted to wearing the same



                                           -5-
J-S44025-19



the Commonwealth, Hites had also first protested during the police interview

that the firearm in the video had been “photo-shopped,” and that he did not

know whether there were any firearms in the house, but shortly afterward told

the police where in the house the gun was located, which contradicts his claim

that he believed they were discussing a separate, wholly-fabricated video. Id.

at 20-21.8 The Commonwealth also proffered that the police had confirmed

Hites’ bedroom was the same room as was shown in the subject video, that a

shell casing was found in the area where the video showed the gun being

discharged, and that Hites had told the officers in a subsequent interview

where in the house the gun was located. Id. at 24.

       The court denied the motion. The court “did not find that [Hites] ha[d]

given a [colorable] claim of innocence and, in fact, ha[d] provided testimony

to support his claim to withdraw his guilty plea[] which is contradictory to

what he testified to under oath during the Guilty Plea Colloquy.” Order,

12/14/18, at 1. In its Rule 1925(a) opinion, the court further explained that

Hites could not contradict the admissions he made during the guilty plea—that

he discharged a firearm in a residence when another person was present. Trial

Court Opinion, filed April 5, 2019, at 7-8. The court also found Hites had not
____________________________________________


clothing as he had been wearing “in” the video, or the same clothing that the
subject of the video had been wearing when filming it, the Commonwealth
may have been referencing other statements Hites made during the police
interview, a copy of which is not in the certified record.
8 The Commonwealth argued that Hites had claimed he “photo-shopped [the
video] to put different pieces together to make the gun.” N.T., 12/14/18, at
21.

                                           -6-
J-S44025-19



asserted his innocence either during the police interview or at the withdrawal

hearing. Hites had only complained that he had not seen the video before

being questioned by the police, and the court concluded that Hites now wanted

to test that evidence at trial. Id. at 6. Finally, the court found that Hites’ claim

that his confession was a misunderstanding was not colorable, stating it was

“unreasonable and unlikely [Hites] believed the police were referring to a

fictional video he made on his phone when interviewing him for firing a gun in

the house.” Id. The court noted that Hites told the police that he was wearing

the same clothing during the interview as when he made the video, and told

the police the location of the firearm. Id.

      The court thereafter sentenced Hites to an aggregate of 30 to 84

months’ incarceration, and Hites appealed.

      Hites presents the following issues:

      1. Whether the lower court erred in denying [Hites]’ request to
      withdraw [his] guilty plea after finding that an admission to
      criminal conduct at his guilty plea colloquy barred withdrawal of
      his guilty plea, notwithstanding [Hites] supplied more than a bare
      assertion of innocence to justify his request to withdraw?

      2. Whether the lower court erred in determining that [Hites] did
      not supply a fair and just reason to withdraw his guilty plea, pre-
      sentence, based upon the testimony developed on the record,
      where he indicated, inter alia, that he was not aware of certain
      discovery materials and, therefore, did not enter a knowing,
      intelligent, and voluntary guilty plea?

Hites’ Br. at 4 (answers below omitted).

      A trial court may grant or deny a pre-sentence motion to withdraw a

guilty plea at its discretion, and we will not disturb its decision absent an abuse


                                       -7-
J-S44025-19



of that discretion. Commonwealth v. Johnson-Daniels, 167 A.3d 17, 23

(Pa.Super. 2017).

      Hites argues that he asserted at the withdrawal hearing that he is

innocent and never possessed or discharged the firearm. Hites further argues

that his claim of innocence was consistent with his interview with the police,

where he denied he had physically possessed the firearm, and told the police

that a video of him holding a firearm must have been “photo-shopped.” Hites

asserts that in addition to his colorable claim of innocence, the court should

have granted his motion because he had materially misapprehended the

nature of the Commonwealth’s key piece of evidence at the time he entered

his plea.

      A trial court faced with a pre-sentence request to withdraw a guilty plea

must decide “whether the accused has made some colorable demonstration,

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

promote fairness and justice.” Commonwealth v. Norton, 201 A.3d 112,

116 (Pa. 2019) (quoting Commonwealth v. Carrasquillo, 115 A.3d 1284,

1292 (Pa. 2015)). The trial court is to exercise its discretion “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. (quoting Carrasquillo, 115

A.3d at 1292).

      However, the “policy of liberality . . . has its limits, consistent with the

affordance of a degree of discretion to the common pleas courts.” Id. (quoting

                                       -8-
J-S44025-19



Carrasquillo, 115 A.3d at 1292). It is within the purview of the trial court to

assess the plausibility of a claim of innocence, as “trial courts are in the unique

position to assess the credibility of claims of innocence and measure, under

the circumstances, whether defendants have made sincere and colorable

claims that permitting withdrawal of their pleas would promote fairness and

justice.” Id. at 121. The trial court must consider the totality of the

circumstances at the time of the withdrawal request, including “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.”

Johnson-Daniels, 167 A.3d at 24.9



____________________________________________


9 Compare Commonwealth v. Islas, 156 A.3d 1185, 1192 (Pa.Super. 2017)
(finding defendant’s claim of innocence was plausible where defendant had
previously protested his innocence to law enforcement and testified at
withdrawal hearing that he had not committed the charged conduct, the victim
had a motive to fabricate the charges, and the defendant just learned of his
available   defenses,    such   as   calling character   witnesses)    with
Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015) (finding defendant’s
assertion of innocence implausible and rebutted by prosecution’s proffer of
taped conversations in which defendant admitted guilt), Commonwealth v.
Williams, 198 A.3d 1181, 1186 (Pa.Super. 2018) (declaring defendant’s
claim of innocence not plausible where defendant claimed at withdrawal
hearing that he had lied under oath during guilty plea colloquy, and
Commonwealth proffered evidence that defendant’s DNA was found in the
rape kit), Commonwealth v. Davis, 191 A.3d 883, 890-91 (Pa.Super. 2018)
(finding defendant’s claim of innocence unsupported and rebutted by the
evidence presented by the Commonwealth), appeal denied, 200 A.3d 2 (Pa.
2019), and Commonwealth v. Baez, 169 A.3d 35, 40 (Pa.Super. 2017)
(concluding defendant’s bald claim of innocence was unsubstantiated by any
defense to the charges).

                                           -9-
J-S44025-19



      Here, at the withdrawal hearing, Hites claimed he was innocent. He

claimed he had not created or sent the subject video, which showed someone

holding and firing a gun, and argued that he was only “guilty” of knowing there

was a weapon in his residence and of sending a fabricated video to his ex-

girlfriend (the contents of which were not explained). However, we conclude

the court did not abuse its discretion in denying the motion, as Hites’ claim of

innocence, based solely on his allegation of confusion during the police

interview, was implausible, as was his allegation of confusion during the guilty

plea hearing.

      At the withdrawal hearing, Hites suggested he had not known at the

time of the interview or plea that the video giving rise to the charges showed

him holding and firing a weapon. However, (1) during his plea hearing, Hites

acknowledged that the Commonwealth proffered to introduce a video that

showed Hites holding and firing a gun inside his residence, and prove that he

did fire the gun inside the residence, and (2) at the withdrawal hearing, the

Commonwealth proffered evidence that the video was filmed in Hites’

bedroom, that they found shell casings there, and that the subject of the video

was wearing the same clothing as Hites’ had been wearing during his police

interview. These factors contradict Hites’ claim that he is not the subject of

the video that shows someone shooting a firearm while wearing his clothing




                                     - 10 -
J-S44025-19



and inside his bedroom, or that he had not understood he was pleading guilty

on the basis of the existence of such a video.10

       Moreover, Hites did not offer before the court a copy of the alleged

fabricated video to support his withdraw request, or explain how its contents

were so similar to the subject video that Hites could have confused the two.

More importantly, Hites made no attempt to explain the origin of the subject

video that he has now had an opportunity to view, and did not deny that it

showed someone wearing his clothing and firing a gun inside his bedroom, or

assert any other valid defenses. The court therefore did not abuse its

discretion in finding that it was unreasonable to believe the statements Hites

made at the withdrawal hearing, and concluding that Hites failed to present a

colorable claim of innocence.

       To the extent that Hites argues the court should have granted his motion

based on his inability to view the video prior to pleading guilty, we fail to see

how this amounts to a fair and just reason to withdraw the guilty plea, rather

than a belated desire to contest the authenticity of the video or the legal

conclusions it supports. Given the weakness of Hites’ arguments that he did

not understand the contents of the video when pleading guilty, and the lack
____________________________________________


10 In addition, at the withdrawal hearing, Hites stated he believed the police
were questioning him about a fabricated video he sent on Valentine’s Day, and
that he was pleading guilty to sending that video. However, during his
interview with the police, Hites admitted he made and sent the video for which
he was being questioned to his ex-girlfriend between 10:00 and 10:30 p.m.
on February 16, 2017, not on Valentine’s Day.



                                          - 11 -
J-S44025-19



of any assertion that the evidence against Hites does not correspond to the

factual basis of the plea, we hold the trial court did not abuse its discretion in

finding that withdrawal in this case would not promote fairness and justice.11

       Hites also argues that the court erred in concluding he could not

withdraw his guilty plea on the basis that he had admitted guilt at the plea

hearing. Hites posits “a defendant’s participation in a guilty plea may not be

used to negate his later assertion of innocence when seeking to withdraw.”

Hites’ Br. at 13 (quoting Islas, 156 A.3d at 1191). Hites claims the court

found his participation in the guilty plea colloquy dispositive of his withdraw

request.

       A defendant who has pled guilty is not precluded from later seeking to

withdraw a plea based on a claim of innocence. Islas, 156 A.3d at 1191.

“[S]uch an incongruity will necessarily be present in all cases where an

assertion of innocence is the basis for withdrawing a guilty plea.” Id. (quoting

Commonwealth v. Katonka, 33 A.3d 44, 49 (Pa.Super. 2011) (en banc),

abrogation on other grounds as recognized by Islas, 156 A.3d at 1188). At

the same time, a defendant may not directly contradict statements he has

made under oath at the time of the guilty plea, such as that he is entering



____________________________________________


11Because we conclude the trial court did not abuse its discretion in finding
no fair and just reason to allow Hites to withdraw his plea, we need not assess
whether the prosecution would have been substantially prejudiced by
withdrawal.



                                          - 12 -
J-S44025-19



into the plea voluntarily. See, e.g., Commonwealth v. Pier, 182 A.3d 476,

480 (Pa.Super. 2018).

       Here, it is not that Hites admitted to committing the acts forming the

factual basis for the plea which precludes him from asserting his innocence.12

Rather, it is Hites’ affirmative acknowledgment at the plea hearing that he

knew and understood the factual basis for the plea, the nature of the evidence

proffered by the Commonwealth, and the elements of the crimes charged,

which were outlined by both the Commonwealth and the trial court, which

belie his current outlandish claim that he had not understood to what facts

and elements he was pleading guilty. The court therefore did not abuse its

discretion in considering the record of the plea hearing when deciding the

validity of Hites’ claim that he had misunderstood the nature of the evidence

against him until after he had pled guilty, and denying the motion.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019


____________________________________________


12 In fact, Hites did not admit he committed the criminal acts during his guilty
plea, or even that the subject video existed, but only acknowledged he
understood what facts the Commonwealth had offered to prove at trial.

                                          - 13 -
