                                   [J-72A-2014]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT

     CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.


COMMONWEALTH OF PENNSYLVANIA, :                  No. 7 EAP 2014
                              :
               Appellant      :                  Appeal from the judgment of the Superior
                              :                  Court at No. 1045 EDA 2011, Dated
                              :                  October 8, 2013, Vacating the Judgment
           v.                 :                  of Sentence of the Philadelphia County
                              :                  Court of Common Pleas, Criminal Division,
                              :                  at Nos. CP-51-CR-0009652-2009 and CP-
JOSE A. CARRASQUILLO,         :                  51-CR-0009653-2009, Dated November
                              :                  30, 2010, and Remanding
               Appellee       :
                              :                  78 A.3d 1120 (Pa. Super. 2013)
                              :
                              :                  ARGUED: September 10, 2014


                                          OPINION

MR. CHIEF JUSTICE SAYLOR1                          DECIDED: June 15, 2015


         In this appeal, we consider the criteria governing the disposition of a presentence

motion to withdraw a guilty plea. Our decision turns on the conclusion that a bare

assertion of innocence is not, in and of itself, a sufficient reason to require a court to

grant such a request.

         On the morning of June 1, 2009, two girls were sexually assaulted by the same

man. The first victim, sixteen-year-old C.J., escaped after offensive touching. Eleven-

year-old N.O., however, was threatened and lured into an alleyway, where she was

brutally raped and sustained severe injuries requiring hospitalization and surgery.


1
    This matter was reassigned to this author.
       Police investigated and arrested Appellee, Jose A. Carrasquillo, who made

inculpatory statements during interrogation.     Charges were lodged in two separate

criminal proceedings, which were later consolidated for trial.        After a psychiatric

evaluation confirmed that Appellee was competent to be tried, he decided to enter open

guilty pleas to various sexual offenses, including rape, as well as other crimes.

       At the plea colloquy, the Commonwealth proffered that the evidence against

Appellee included his own statements, identification testimony from both victims, video

surveillance recordings apparently showing Appellee with or in the vicinity of each victim

close in time to the assaults, and DNA and fingerprint evidence linking Appellee to the

rape of N.O. See N.T., Aug. 11, 2010, at 32-45.

       The plea court advised Appellee of his pertinent constitutional rights and the

implications of waiver. After further explaining that Appellee faced possible sentences

of life and nine years’ imprisonment, respectively, in the cases relating to N.O. and C.J.,

the court accepted the pleas and entered verdicts. Appellee was also informed that he

could seek to withdraw his guilty plea at any time before sentencing and that the court

“would have to consider whether or not the reasons for you doing so are fair and

necessary, fair and appropriate, compared to the prejudice that that might cause to the

Commonwealth’s case and to their witnesses, and particularly in this case to child

witnesses.” Id. at 63. See generally Commonwealth v. Forbes, 450 Pa. 185, 190, 299

A.2d 268, 271 (1973).

       Three and one-half months later, the court conducted a sentencing hearing. The

prosecutor read into evidence a report prepared for the Sexual Offenders Assessment

Board, which described Appellee’s multiple sexually violent episodes and concluded

that Appellee was a sexually violent predator for the purposes of Megan’s Law. See 42

Pa.C.S. §§9794(c), 9795.4(b) (superseded). The report portrayed Appellee as a cruel




                                     [J-72A-2014] - 2
assailant, who “was sexually aroused by acts of violence, domination, or threats upon

the victims” and for whom self-reported rage and anger were secondary motivators.

N.T., Nov. 30, 2010, at 49-66. In addition, N.O., her parents, grandmother, teacher, and

physician testified to the severe physical and emotional trauma that N.O. had suffered.

Among other things, the witnesses stated that memories of the brutal attack continued

to affect N.O.’s emotional and psychological well-being. See id. at 73-75, 86-88. In

mitigation, Appellee offered expert testimony describing neuropsychological impairment

affecting his behavior, and a letter from his paternal aunt requesting leniency. See id. at

90-122.

       After the defense rested, Appellee explained in allocution that he had pled guilty

to spare N.O. suffering, and he therefore expressed surprise at his portrayal during the

sentencing hearing. Appellee also stated that he had entered his plea because, absent

a polygraph examination, his account would not have been believed and he would not

have received a fair trial. He continued to discuss scenarios unrelated to the sexual

assault of N.O., in which the CIA purportedly had victimized him by seeking to employ

him as an assassin abroad, and where a serpent assertedly appeared and “[t]he

Antichrist, he came out of me[.]” See id. at 123. Claiming that he did not commit the

assault against N.O. and had been framed, Appellee insisted that a polygraph test

would prove his innocence and asked to withdraw his guilty plea. See id. at 122-24.

       The prosecutor responded that permitting Appellee to withdraw his guilty plea

would prejudice the Commonwealth, because N.O. had a sense of closure knowing that

she did not have to testify; forcing her to testify and “re-open old wounds . . . would be

extremely prejudicial to her well-being.” Id. at 129.

       The sentencing court denied the motion to withdraw.         Once again, Appellee

requested an investigation and a polygraph, saying “[i]f not, you go ahead and give me




                                     [J-72A-2014] - 3
life.” Id. at 133. Sentencing proceeded, and Appellee received an aggregate term of

incarceration of 30 to 66 years.

       Upon Appellee’s appeal, the sentencing court issued an opinion setting forth its

rationale. See Commonwealth v. Carrasquillo, Nos. CP-51-CR-0009652-2009 & CP-

51-CR-0009653-2009, slip op. at 9 (C.P. Phila. Dec. 29, 2011).         Initially, the court

reiterated that the grant or denial of a motion to withdraw is discretionary in the trial

court at any time before sentence imposition and that defendants have no absolute right

to the requested relief. See id. (citing Pa.R.Crim.P. 591(A)); see also Forbes, 450 Pa.

at 190, 299 A.2d at 271; accord Commonwealth v. Randolph, 553 Pa. 224, 228-29, 718

A.2d 1242, 1244 (1998). The court recognized, however, the directive of this Court that

such discretion should be exercised liberally in defendants’ favor. See Forbes, 450 Pa.

at 190, 299 A.2d at 271; accord Commonwealth v. Santos, 450 Pa. 492, 494-95, 301

A.2d 829, 830 (1973) (“The trial courts in exercising their discretion must recognize that

‘before judgment, the court 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.’” (quoting, indirectly, Dukes v.

Warden, Conn. State Prison, 406 U.S. 250, 258, 92 S. Ct. 1551, 1555 (1972) (Stewart,

J., concurring))).

       Such principles, the court noted, were distilled by this Court in Forbes into the

governing requirement that a presentence motion to withdraw a guilty plea should be

granted if supported by a fair and just reason and substantial prejudice will not inure to

the Commonwealth. See Forbes, 450 Pa. at 190-91, 299 A.2d at 271 (referencing

various federal authorities and secondary materials). Nevertheless, in the sentencing

court’s view, denial is appropriate where the reasons offered by a defendant are belied




                                    [J-72A-2014] - 4
by the record. See Carrasquillo, Nos. CP-51-CR-0009652-2009, et al., slip op. at 9

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

       As applied to the present circumstances, the sentencing court reasoned that

Appellee’s claim of innocence -- premised in part on an explanation that he had been

framed in an elaborate scheme orchestrated by the Central Intelligence Agency and

conditioned upon a polygraph test -- was implausible, insincere, and “nothing more than

an attempt to manipulate the justice system” by introducing a belated competency-

based defense. Id. at 10. The court stressed that Appellee asserted his innocence

nearly four months after entering his guilty plea and only minutes before sentencing,

timing which also diminished his credibility. In the sentencing court’s view, rather than a

good-faith advancement of innocence, Appellee’s “allocution was a guilty, shamed

reaction to harsh testimony at the sentencing hearing, in which he heard himself

described as a ‘monster,’ ‘pedophile,’ and ‘rapist’ by the victim and her family as they

recounted the suffering and anguish he inflicted upon them.” Id. at 11. Finally, the court

found that the Commonwealth would be substantially prejudiced, because withdrawal of

the plea would place “the Commonwealth in the dilemma of reopening the wounds of a

healing child or withdrawing its prosecution.” Id. at 13 (footnote and citation omitted).

       On appeal, a divided en banc panel of the Superior Court reversed, holding that

the trial court abused its discretion in denying Appellee’s request to withdraw his guilty

plea. See Commonwealth v. Carrasquillo, 78 A.3d 1120, 1131 (Pa. Super. 2013).2 In

terms of the the fair-and-just criterion deriving from Forbes, the Superior Court majority

acknowledged that Appellee had made “fantastical and outlandish claims during his

sentencing hearing.” Id. at 1126. The majority nonetheless found Appellee’s claim of


2
  En banc consideration by the intermediate appellate court occurred on reargument,
after a three-judge panel initially had reversed in a memorandum decision.



                                     [J-72A-2014] - 5
innocence to be controlling, stating that “our law does not (contrary to the

Commonwealth’s suggestion) require some quantum of ‘rational support’ as a

prerequisite for a plea withdrawal.” Id. Along these lines, the majority indicated:

              We find no basis in precedent to authorize trial courts to
              import a rationality test or to examine the clarity or
              articulateness of movants’ words in these circumstances.
              We are unprepared to bar an otherwise lawful motion
              because the language used includes not only a clear
              assertion of innocence, but also outlandish verbiage and
              extraneous references.
Id. at 1127 (footnote omitted).

       The majority next refused to consider the strength of the Commonwealth’s

evidence against Appellee, as it found this to have no bearing on the dispositive

innocence claim. See id. at 1127-28 (quoting Commonwealth v. Katonka, 33 A.3d 44,

49-50 (Pa. Super. 2011) (en banc)). Instead, the majority reinforced that “[w]e have

made it clear that, in assessing a defendant’s presentence petition to withdraw a guilty

plea, trial courts are ‘not permitted to make a determination regarding the sincerity of

[defendants’] unambiguous claims of innocence.’” Id. at 1128 (quoting Commonwealth

v. Unangst, 71 A.3d 1017, 1022 (Pa. Super. 2013)). Accordingly, in the majority’s view,

an unambiguous assertion of innocence -- regardless of its rationality, clarity, sincerity,

or plausibility -- was sufficient to warrant withdrawal.

       In terms of the finding that Appellee had an ulterior motive in that he was

attempting to manipulate the process, the Superior Court majority found no supportive

evidence. See id. On this point, the majority quoted from Unangst in its rejection of a

similar contention:

              [A]ny time a defendant moves to withdraw a guilty plea prior
              to sentencing, he could be accused of engaging in a dilatory
              tactic to avoid sentencing. Thus, if we were to permit this
              type of reasoning to defeat a presentence motion to


                                      [J-72A-2014] - 6
             withdraw, we would be ignoring the clear pronouncements
             from our Supreme Court in Forbes and Randolph.
Id. (quoting Unangst, 71 A.3d at 1022); accord id. (positing that the Commonwealth had

offered no evidence that Appellee “asserted his innocence as a pretext, or as a ploy to

game the system”).

      The majority also held that the trial court had abused its discretion in finding that

withdrawal of the plea would result in substantial prejudice to the Commonwealth.

Quoting Commonwealth v. Gordy, 73 A.3d 620 (Pa. Super. 2013), it explained that

“prejudice is about the Commonwealth’s ability to try its case, not about the personal

inconvenience to complainants unless that inconvenience somehow impairs the

Commonwealth’s prosecution.” Carrasquillo, 78 A.3d at 1129 (quoting Gordy, 73 A.3d

at 624 (citation omitted)); cf. Commonwealth v. Kirsch, 930 A.2d 1282, 1286 (Pa. Super.

2007) (“[P]rejudice cannot be equated with the Commonwealth being made to do

something it was already obligated to do prior to the entry of the plea.”).          Thus,

according to the majority, the Commonwealth’s interest in shielding N.O. from testifying

was insufficient as a matter of law to establish prejudice, because withdrawal meant

only that the Commonwealth would have to try the case and present N.O. as a witness,

which it was already obliged to do before the plea. See Carrasquillo, 78 A.3d at 1129.

      Judge Gantman concurred in the result without opinion, while Judge Mundy,

joined by then-President Judge Bender and Judge Panella, dissented. The dissent

reasoned that the majority accorded too much weight to Appellee’s innocence claim;

instead, the dissent posited that the entire exchange cast a different light on the

assertion. In this respect, the dissenting judges viewed Appellee’s claim as conditional,

given that various of Appellee’s statements suggested that it was meant to be

dependent on the affordance of a polygraph examination. The dissent would have held

that such a conditional invocation was not a fair and just reason to support withdrawal of



                                    [J-72A-2014] - 7
the guilty plea. See id. at 1132-36 (Mundy, J., dissenting, joined by Bender, P.J. and

Panella, J.).3

       The Commonwealth petitioned for allowance of appeal. We accepted review,

inter alia, to clarify whether the common pleas courts must accept a bare assertion of

innocence as a fair and just reason for withdrawal. See Commonwealth v. Carrasquillo,

624 Pa. 503, 86 A.3d 830 (2014) (per curiam).

       Presently, the Commonwealth criticizes the Superior Court’s holding as being

fundamentally inconsistent with the discretion invested in sentencing courts. See Brief

for Appellant at 12 (“The Superior Court’s inflexible rule treats a plea of guilty as a

meaningless formality, revocable at the defendant’s whim upon utterance of magic

words, and employable by him to manipulate or frustrate the justice system.”); accord

United States v. Barker, 514 F.2d 208, 221 (D.C. Cir. 1975) (“Were mere assertion of

legal innocence always a sufficient condition for withdrawal, withdrawal would effectively

become an automatic right.”); State v. Smullen, 571 A.2d 1305, 1309 (N.J. 1990)

(“Liberality in exercising discretion does not mean an abdication of all discretion.”

(quoting State v. Huntley, 322 A.2d 177, 179 (N.J. Super. 1974)).                 In the

Commonwealth’s view, the courts of common pleas should be afforded latitude to

evaluate the sincerity and plausibility of the justification for withdrawing a guilty plea

offered by an accused.      See, e.g., Brief for Appellant at 21 (“A court exercising

discretion must necessarily be entitled to decide whether a purported profession of

innocence is legitimate, or it is instead an empty demonstration made in an effort to

create delay or disrupt the prosecution.”). The Commonwealth believes that such an

3
 The dissenting judges did not recognize that the passage of the discussion between
Appellee and the sentencing court which they regarded as “the most telling” of
Appellee’s intentions ensued after the court had rendered its ruling denying withdrawal.
See N.T., Nov. 30, 2010, at 132-33.



                                    [J-72A-2014] - 8
approach reconciles with Forbes, in that liberality should extend to plausible claims of

innocence, which would not be lightly discredited.           See id. at 22.       It is the

Commonwealth’s position that the inflexible rule reflected in the Superior Court’s

decisions “degrade[s] the otherwise serious act of pleading guilty[.]”       Id. at 18, 22

(quoting United States v. Hyde, 520 U.S. 670, 677, 117 S. Ct. 1630, 1634 (1997)).

       The Commonwealth traces what it views as a perversion of the Forbes standard

to an en banc decision of the Superior Court in Commonwealth v. Cole, 387 Pa. Super.

328, 564 A.2d 203 (1989). See id. at 333-34, 564 A.2d at 205 (stating that “where a

defendant has asserted innocence . . . it has been held to be an abuse of discretion for

a trial court to deny a pre-sentence petition for withdrawal of a guilty plea.”).4 The

Commonwealth highlights, however, that concerns with a blanket approach were

registered at that time of Cole’s issuance and going forward. See id. at 338, 564 A.2d

at 207-08 (McEwen, J., concurring) (suggesting that “[t]he admonition of Forbes [and its

progeny] that a presentence request to withdraw a guilty plea be ‘construed liberally’ in

favor of the accused, is not a direction to blithely ignore the obvious, or to heedlessly

abandon reason”); id. at 339, 564 A.2d at 208 (Kelly, J., concurring) (cautioning that

treating a claim of innocence as a per se basis for withdrawal would require that “a

disingenuous incantation . . . by judicial alchemy would become magic words with which

to evade the legitimate requirement of ‘just cause’ for withdrawal”). The Commonwealth

complains that subsequent decisions of the intermediate court have followed the lead of

the Cole majority to erroneously equate the mere assertion of innocence with a fair-and-

just reason under Forbes. See Brief for Appellant at 19 (citing Commonwealth v. Rish,

4
  Earlier decisions of the intermediate court also are reflective of a bright-line approach.
See, e.g., Commonwealth v. Boofer, 248 Pa. Super. 431, 433, 375 A.2d 173, 174
(1977) (“An assertion of innocence is a ‘fair and just reason’ for permitting withdrawal of
a guilty plea.” (citation omitted)).



                                     [J-72A-2014] - 9
414 Pa. Super. 220, 224, 606 A.2d 946, 947 (1992), and Commonwealth v. Iseley, 419

Pa. Super. 364, 374, 615 A.2d 408, 413 (1992)).                 Although the Commonwealth

references a few cases as taking a contrary view,5 it observes that the per se approach

became entrenched in and after the recent decision of an en banc panel in Katonka, 33

A.3d at 50 & n.2. This, the Commonwealth asserts, is manifestly contrary to the weight

of authority in other jurisdictions and warrants correction.6

       Appellee, in his brief, embraces the per se approach to innocence claims,

arguing that it derives specifically from Forbes, and has been implemented by this Court

in Commonwealth v. Woods, 452 Pa. 546, 550-51, 307 A.2d 880, 881-82 (1973), and in

a strong admonishment of the Superior Court’s departures in Randolph, 553 Pa. at 230,

718 A.2d at 1244-55 (criticizing the intermediate court’s refusal to give weight to an

innocence assertion as a “cavalier disregard of the Forbes standard”).           Appellee


5
  See Brief for Appellant at 19 n.5 (citing Tennison, 969 A.2d at 575 (indicating that “a
fair and just reason has to be a credible reason”), and Commonwealth v. Miller, 432 Pa.
Super. 619, 628-29, 639 A.2d 815, 819 (1994) (upholding a common pleas court’s
refusal to permit withdrawal of a plea, in part, because the defendant’s “alleged
assertion of innocence rings hollow”)).

6
 The following decisions exemplify the proposition that a mere, bare, or non-colorable
assertion of innocence is insufficient, in and of itself, to support withdrawal of a plea:
United States v. Buholtz, 562 Fed. Appx. 213, 214 (5th Cir. 2014); United States v.
Shumaker, 475 Fed. Appx. 817, 821 (3d Cir. 2012) (quoting United States v. Jones, 336
F.3d 245, 252 (3d Cir. 2003)); United States v. Gonzalez, 647 F.3d 41, 53 (2d Cir.
2011); United States v. Reid, 387 Fed. Appx. 392, 394 (4th Cir. 2010); United States v.
Goodson, 569 F.3d 379, 383 (8th Cir. 2009); United States v. Wolf, 44 Fed. Appx. 16,
19 (7th Cir. 2002); Everard v. United States, 102 F.3d 763, 766 (6th Cir. 1996); Barker,
514 F.2d at 221; State v. Munroe, 45 A.3d 348, 356 (N.J. 2012); White v. United States,
863 A.2d 839, 842 (D.C. 2004). See generally Thomas P. Reilly, Note, Now I’m Guilty,
Now I’m Not: The Automatic Right to Pre-Sentence Guilty Plea Withdrawals in
Pennsylvania Since Commonwealth v. Forbes, 59 VILL. L. REV. 305, 320-30 & nn. 85-
138 (2014) (collecting cases) (offering a comparison between Pennsylvania cases
governing presentence plea withdrawal with those of other jurisdictions).



                                     [J-72A-2014] - 10
stresses that the intermediate court took heed of Randolph by effectuating the per se

approach to innocence claims in a series of ensuing decisions. See Brief for Appellee

at 14 (citing Gordy, 73 A.3d at 629, Unangst, 71 A.3d at 1021, Commonwealth v. Pardo,

35 A.3d 1223, 1230 (Pa. Super. 2011), Katonka, 33 A.3d at 50 & n.2, Kirsch, 930 A.2d

at 1285-86, Commonwealth v. Goodenow, 741 A.2d 783, 787 (Pa. Super. 1999),

Commonwealth v. Hutchins, 453 Pa. Super. 209, 212-13, 683 A.2d 674, 676 (1996),

Rish, 414 Pa. Super. at 224, 606 A.2d at 947, and Cole, 387 Pa. Super. at 333-34, 564

A.2d at 205). While Appellee recognizes the bright-line nature of this approach, he

emphasizes that relief is not “automatic,” since the common pleas court may still

consider prejudice to the Commonwealth. See, e.g., Katona, 33 A.3d at 50 (remanding

for such a prejudice assessment).

      According to Appellee, requiring the accused to offer evidence of the sincerity or

plausibility of his assertion contravenes the liberality required by Forbes and unfairly

shifts the burden of proof from the prosecution onto the defendant, thereby impairing the

defendant’s constitutional rights to a fair trial and to counsel.      Along these lines,

Appellee suggests that allowance for credibility judgments will yield inconsistent results,

particularly since “intent to delay or manipulate the prosecution can be alleged in every

single instance of a defendant moving to withdraw his guilty plea.” Brief for Appellee at

10; accord Unangst, 71 A.3d at 1022 (“[I]f we were to permit this type of reasoning to

defeat a presentence motion to withdraw, we would be ignoring the clear

pronouncements from our Supreme Court in Forbes and Randolph.”).7 Although the

clear weight of the federal authority is against him, see supra note 6, Appellee asserts

7
  In any event, Appellee cites the Superior Court’s Tennison decision as creating an
exception that allows an innocence assertion to be discredited, but only where the
record plainly demonstrates an ulterior motive (and not where such motive must be
inferred). See Brief for Appellee at 22 (citing Tennison, 969 A.2d at 578).



                                    [J-72A-2014] - 11
that we should not follow the lead of the federal courts, since the Federal Rules of

Criminal Procedure establish a different system for when and how pleas may be

withdrawn, encompassing allowance of withdrawal for “any reason or no reason” prior to

acceptance of the plea. See Brief for Appellee at 20 n.6 (“A more strict interpretation of

the ‘fair and just’ standard makes more sense under the federal rules because of the

additional procedural protection afforded to withdrawal of pleas prior to their being

accepted.” (citing Fed.R.Crim.P. 11(d))).

      Appellee also posits that there are practical concerns attending movement away

from a bright-line approach:

             [I]t raises questions as to what sort of evidence would be
             admissible in support of the motion (offer of proof,
             documentation, testimonial), what standard would be used to
             weigh the evidence (prima facie, preponderance of the
             evidence, beyond a reasonable doubt), and how would
             courts handle cases involving alternative defenses (self-
             defense, diminished capacity, insanity). The hearing on the
             motion to withdraw would become a mini-trial and would
             open the door to vast amounts of new appellate litigation.
Id. at 28. Appellee cautions against “blur[ring] the line” between pre- and post-sentence

withdrawal standards. Id. at 28.

      The issues posed, involving the application of the Forbes standard, are questions

of law.   Accordingly, our review of the Superior Court’s decision is plenary.       See

Commonwealth v. Batts, 620 Pa. 115, 127, 66 A.3d 286, 293 (2013).

      As amply reflected above, this Court’s Forbes decision reflects that: there is no

absolute right to withdraw a guilty plea;8 trial courts have discretion in determining

8
  A guilty plea implicates the waiver of important constitutional rights attending a
defendant’s trial rights. See, e.g., Brady v. United States, 397 U.S. 742, 748, 90 S. Ct.
1463, 1468-69 (1970) (explaining that a “plea is more than an admission of past
conduct; it is the defendant's consent that judgment of conviction may be entered
(continuedN)


                                    [J-72A-2014] - 12
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. See Forbes, 450 Pa. at 190-91, 299 A.2d at 271. The

perfunctory fashion in which these principles were applied to the circumstances

presented in Forbes, as well as in the ensuing decision in Woods, 452 Pa. at 546, 307

A.2d at 880, also lent the impression that this Court had required acceptance of a bare

assertion of innocence as a fair-and-just reason. See, e.g., Forbes, 450 Pa. at 192, 299

A.2d at 272 (“Obviously, [the] appellant, by [his] assertion of innocence – so early in the

proceedings[, i.e., one month after the initial tender of a plea,] – offered a ‘fair and just’

reason for withdrawal of the plea.”).

       Both Forbes and Woods, however, are distinguishable on their facts, particularly

in terms of the timing of the innocence claim. In Forbes, the Court noted that the claim

was made about one month after the plea tender. See id. In Woods, albeit that the

innocence declaration was made over a year after the plea was accepted, this Court

highlighted its occurrence nine months before sentencing. See Woods, 452 Pa. at 550-

51, 307 A.2d at 882. Nevertheless, in light of the Randolph Court’s forceful emphasis

upon such an innocence declaration, and its concomitant rejection of the common pleas

and intermediate courts’ reliance on the defendant’s previous concessions to guilt, see

Randolph, 553 Pa. at 230-31, 718 A.2d at 1244-45, we cannot criticize the intermediate

court for its understanding that credibility judgments relative to innocence were

foreclosed. See, e.g., Katonka, 33 A.3d at 49 (citing Randolph for the proposition that


(Ncontinued)
without a trial -- a waiver of his right to trial before a jury or a judge”); Commonwealth v.
Culbreath, 439 Pa. 21, 26, 264 A.2d 643, 645 (1970) (observing that, by pleading guilty,
a defendant waives non-jurisdictional defects and defenses).



                                     [J-72A-2014] - 13
this Court had condemned credibility determinations as to a defendant’s innocence in

the plea withdrawal context). In other words, we acknowledge the legitimate perception

of a per se rule arising from this Court’s decisions.

       As with other such bright-line rules, however, the principle is subject to the axiom

that the holding of a decision is to be determined according to the facts under

consideration, see, e.g., Oliver v. City of Pittsburgh, 608 Pa. 386, 395, 11 A.3d 960, 966

(2011), and continuing evaluation as experience with new fact patterns offers further

insight into the wisdom of a per se approach. Indeed, we recently observed, that, “for

better or for worse, the experience with broadly stated prophylactic rules often has been

that they cannot be sustained on their original terms.” Commonwealth v. Henderson,

616 Pa. 277, 287, 47 A.3d 797, 803 (2012).

       Presently, we are 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. See supra note 6

(citing cases). More broadly, the proper 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. The policy of liberality remains extant but has its limits, consistent with the

affordance of a degree of discretion to the common pleas courts.

       This case, in our view, illustrates why the existing per se approach to innocence

claims is unsatisfactory.    Here, Appellee’s assertion was first made in sentencing

allocution, after the close of the evidentiary record (which, in any event, was dedicated

to a different purpose, since no motion to withdraw had been advanced before or during

such record’s development). No request was made to reopen the record for an orderly

presentation in support of Appellee’s request. Moreover, the bizarre statements made




                                     [J-72A-2014] - 14
by Appellee in association with his declaration of innocence wholly undermined its

plausibility, particular in light of the Commonwealth’s strong evidentiary proffer at the

plea hearing. In the circumstances, the common pleas court should not have been

required to forego sentencing; rather, we find that it acted within its discretion to refuse

the attempted withdrawal of the plea.9

       The order of the Superior Court is reversed, and the matter is remanded for

reinstatement of the judgment of sentence. Jurisdiction is relinquished.



       Former Chief Justice Castille and former Justice McCaffery did not participate in

the decision of this case.

       Messrs. Justice Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens

join the opinion.

       Mr. Justice Stevens files a concurring opinion in which Mr. Justice Baer joins.




9
 In light of our disposition, above, we do not reach the second issue presented on
appeal, which concerns prejudice to the Commonwealth. See Carrasquillo, 624 Pa. at
503, 86 A.3d at 830.



                                    [J-72A-2014] - 15
