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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CORY L. LANG                            :
                                         :
                   Appellant             :   No. 1353 EDA 2019

        Appeal from the Judgment of Sentence Entered April 4, 2019
    In the Court of Common Pleas of Wayne County Criminal Division at
                      No(s): CP-64-CR-0000330-2018



 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CORY L. LANG                            :
                                         :
                   Appellant             :   No. 1354 EDA 2019

        Appeal from the Judgment of Sentence Entered April 4, 2019
    In the Court of Common Pleas of Wayne County Criminal Division at
                      No(s): CP-64-CR-0000331-2018



BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED APRIL 7, 2020

     In these appeals, which we hereby consolidate, Appellant, Cory L. Lang,

appeals from the judgment of sentence of an aggregate term of 30 to 60

months’ incarceration, imposed after he pled guilty to two counts of receiving

stolen property in two separate cases, CP-64-CR-0000330-2018 (hereinafter
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“330-2018”)    and    CP-64-CR-0000331-2018        (hereinafter   “331-2018”).

Appellant solely challenges the trial court’s denial of his pre-sentence motion

to withdraw his guilty pleas in both cases. After careful review, we affirm.

      The trial court summarized the pertinent facts and procedural history of

Appellant’s cases, as follows:

      I. Case Number 330-[]2018

                                         ***

             On July 25, 2018, State Police responded to a report of a
      vehicle crash on Huckleberry Road in Dreher Township, Wayne
      County. [At] the scene, State Police observed a 2016 white Ford
      Explorer pinned against a tree and a white male later identified as
      [Appellant] in the grass being treat by EMS. The passenger was
      being extricated from the passenger seat by EMS. Police spoke
      with a Frank Cortino, who arrived on scene immediately after the
      crash, who stated that he and another male helped the operator,
      identified as [Appellant], from the driver’s seat of the Ford
      Explorer. Police made contact with [Appellant] who was identified
      by a New Jersey driver’s license[,] which was found in the pocket
      of the driver’s side door. [Appellant] admitted he was the
      operator of the Explorer, however, he did not know his
      passenger’s name. He related he was going to a friend’s home,
      but did not know where. Both [Appellant] and the passenger,
      identified as James Macon by his New Jersey Department of
      Corrections ID Card, were unsure as to what had happened. Both
      men had bloodshot and glossy eyes[,] and the smell of marijuana
      was emanating from their persons. Macon also did not know the
      name of the driver. The vehicle registration was run and it was
      determined that the vehicle in question was stolen earlier that
      morning, with its keys, from a car dealership in Woodbridge, New
      Jersey. Marijuana was found in a plastic bottle on the driver’s side
      floor and a set of keys to the Explorer was found in the pocket of
      the driver’s door next to [Appellant’s] wallet. A blood test on
      [Appellant] came back positive for the presence of cocaine and
      marijuana.

            [Appellant] was charged on July 26, 2018[, with various
      offenses,  including   receiving stolen   property.]    [He]


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     subsequently[] … waived his preliminary hearing and formal
     arraignment. … In September 2018, [Appellant] wrote a letter to
     the District Attorney of Wayne County and in the letter,
     [Appellant] acknowledged who [his c]o-[d]efendant was and what
     he was charged with[,] but [he] claimed his innocence in general
     [to the crimes charged in 330-2018].

                                     ***

            On December 20, 2018, [Appellant], under oath, voluntarily
     and intelligently pled guilty to Count 1-Receiving Stolen Property,
     a felony in the 3rd degree. This [c]ourt accepted [Appellant’s]
     guilty plea. However, on February 6, 2019, one day before
     sentencing, [Appellant] filed a Motion to Withdraw his Guilty Plea
     on 330-[]2018. [Appellant] testified that he [had] advised his
     attorney of his intent to withdraw his plea approximately two
     weeks prior to sentencing[,] but a miscommunication occurred
     regarding hi[s] obtaining private counsel and the Motion was not
     filed until the day before sentencing. [Appellant] testified that he
     wanted to withdraw his guilty plea because his [c]o-[d]efendant
     told [Appellant’s] mother on the phone that [Appellant] did not
     know the vehicle in question was stolen. [Appellant] claimed he
     is innocent in his Motion to Withdraw the Guilty Plea and at the
     hearing [held thereon on February 21, 2019].               However,
     [Appellant] admitted he entered a guilty plea knowingly and
     voluntarily and did not present any evidence that he did not know
     the vehicle in question was stolen at the hearing.              The
     [C]ommonwealth did not present any evidence of prejudice.

     II. Case Number 331-[]2018

            The Affidavit of Probable Cause and Complaint allege that
     the incident occurred on April 13, 2018[,] in Breezewood Acres
     Lehigh Township, Wayne County. [Appellant] was identified by a
     local resident who had extended interactions and conversations
     with [Appellant] on two separate days. Raymond Grace …
     reported that [Appellant] asked [] Grace for his help pulling his
     friend’s vehicle out of the woods. [] Grace told [Appellant] that it
     was late and that he would help him the following day. Grace
     stated when he met [Appellant] and his friend, both were covered
     in mud and wearing all black. [Appellant] stated they needed help
     getting their Nissan Exterra out of the woods. Grace thought they
     might have been four[-] wheeling but when Grace first saw them,
     they were on foot.

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           The following morning[,] they were riding a red quad.
     [Appellant] was very insistent that they get the car out quickly.
     Grace met them on Rt. 196 at 8:28[]AM[,] and they were farther
     up in the woods than they initially told Grace. [Appellant] was
     riding the red quad and hooked up Grace’s vehicle to their car so
     he could pull them out. Grace’s vehicle broke while doing so. The
     plan was for [Appellant] and the other individual to follow Grace
     back to Breezewood because his vehicle was now broken. When
     they came out of the woods, [Appellant] and his friend both turned
     onto Rt. 196 and took off towards Mt. Pocono and never followed
     [] Grace back to Breezewood. A red quad was later found by
     Lehigh Police on Rt. 196 and 422 in the woods. Shawn Bradford,
     a resident of Breezewood Acres, had his trailer broken into the
     previous day and he identified the red Kawasaki Prairie ATV found
     on Rt. 196 as his. He did not give permission to [Appellant] or
     anyone to remove or operate his red ATV.

            A summons was issued for [Appellant] on May 17, 2018,
     and an arrest warrant was issued on May 30, 2018. [Appellant]
     was arrested on July 26, 2018[,] and [he] waived his preliminary
     hearing and formal arraignment on August 1, 2018. [In the]
     September … 2018 [letter from Appellant to the Wayne County
     District Attorney,]… [Appellant] stat[ed] that he [was] aware of
     the charges, aware of the deal offered, but he wanted to know the
     terms if he did plead guilty. [Appellant] wrote[:] “Now as for No.
     CP 64-CR-0000331-2018 for Receiving Stolen Property on April
     13, 2018, I would have no problem pleading guilty…. But I want
     to make sure that I know what the sentence would be if I did plead
     guilty.” On December 20, 2018[,] [Appellant], under oath,
     voluntarily and intelligently plead guilty to Count 1-Receiving
     Stolen Property, a felony in the 3rd degree. The [s]ummary of
     [e]vidence put on the record, which included the date of April 13,
     2018 as the date of the offense, [stated that] [Appellant] [was]
     operating the red Kawasaki Prairie ATV. This [c]ourt accepted the
     plea.    On February 6, 2019, one day before sentencing,
     [Appellant] filed a Motion to Withdraw his Guilty Plea on 331-
     []2018. [Appellant] cite[d,] in his Motion to Withdraw[,] that at
     the time of the alleged crimes[,] he was living in Florida with an
     individual named Stephen Gresci. [Appellant] never filed a Notice
     of Alibi Witnesses pursuant to [] Pennsylvania Rule of Criminal
     Procedure 567. [Appellant] in this matter was made aware of the
     date of the offense at his preliminary arraignment on July 26,
     2018[,] when [Appellant] was provided a copy of the complaint
     that included the date of April 13, 2018[,] as the offense date.


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     [Appellant] did not present any evidence to support his alibi
     defense at his Motion to Withdraw Guilty Plea Hearing held on
     February 21, 2019. The Commonwealth did not present any
     evidence of prejudice.

Trial Court Opinion (TCO), 3/22/19, at 1-5 (footnote omitted).

     On March 22, 2019, the trial court issued an order and opinion denying

Appellant’s motion to withdraw his guilty pleas in both cases.    On April 4,

2019, he was sentenced to the aggregate term stated supra. Appellant filed

timely notices of appeal in both cases, and he also timely complied with the

trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. In both cases, Appellant raises the same issue for

our review: “Whether the trial court erred in denying Appellant’s motion to

withdraw [his] guilty plea?” Appellant’s Brief in 330-2018 at 4; Appellant’s

Brief in 331-2018 at 4.

     We begin by setting forth our standard of review:

     We review a trial court’s ruling on a pre-sentence motion to
     withdraw a guilty plea for an abuse of discretion.
     Commonwealth v. Elia, 83 A.3d 254, 261 (Pa. Super. 2013).

     Pennsylvania Rule of Criminal Procedure 591(A) provides:

        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.

     Pa.R.Crim.P. 591(A). The official comment to Rule 591 provides:

        “After the attorney for the Commonwealth has had an
        opportunity to respond, a request to withdraw a plea made
        before sentencing should be liberally allowed.” Id. cmt.
        Similarly, in Commonwealth v. Forbes, [299 A.2d 268
        (Pa. 1973),] the Pennsylvania Supreme Court concluded:
        “Although there is no absolute right to withdraw a guilty


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        plea, properly received by the trial court, it is clear that a
        request made before sentencing ... should be liberally
        allowed.”

     [Id. at 271] … (emphasis in original). The Court in Forbes went
     on to explain:

        [I]n 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. If the trial court finds
        “any fair and just reason”, withdrawal of the plea before
        sentence should be freely permitted, unless the prosecution
        has been “substantially prejudiced.”

     Id. (internal citations and some internal quotations omitted). In
     Elia, this Court explained the rationale for the rule of liberal
     allowance of withdrawal of guilty pleas before sentencing:

        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.

     83 A.2d at 262 (quoting Commonwealth v. Santos, … 301 A.2d
     829, 830 ([Pa.] 1973)) (internal citation and quotations omitted).

                                     ***

            In Commonwealth v. Carrasquillo, … 115 A.3d 1284
     ([Pa.] 2015), the Pennsylvania Supreme Court recently provided
     further guidance on the proper exercise of discretion in the context
     of pre-sentence requests to withdraw guilty pleas. While the Court
     reaffirmed the Forbes liberal-allowance standard, it also observed
     that its own application of that standard had “lent the [false]
     impression that this Court had required acceptance of a bare
     assertion of innocence as a fair-and-just reason” to withdraw a
     guilty plea. Id. at 1292. “In other words, we acknowledge the
     legitimate perception of a per se rule arising from this Court’s
     decisions.” Id. While our Court shared this misimpression, we
     also observed that this per se approach was “apparently an
     extremely unpopular rule with prosecutors and trial courts….”




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      Rejecting the per se approach, our Supreme Court in
      Carrasquillo held that “a bare assertion of innocence is not, in
      and of itself, a sufficient reason” to grant a defendant’s motion to
      withdraw a guilty plea. 115 A.3d at 1285 (emphasis added). The
      Court further stated that “a mere, bare, or non-colorable assertion
      of innocence is insufficient, in and of itself, to support withdrawal
      of a plea.” Id. at 1290 n.6. Replacing the bright-line rule, the
      Court instructed 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. 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.

      Id. at 1292 (internal citation omitted).

Commonwealth v. Islas, 156 A.3d 1185, 1187–89 (Pa. Super. 2017).

      Here, Appellant offers a different reason for seeking to withdraw his

guilty plea in each of his two cases. First, in case 330-2018, Appellant claims

that his co-defendant, James Macon, “called Appellant’s grandmother and

mother [stating that he] has evidence that could exonerate [] Appellant.”

Appellant’s Brief in 330-2018 at 13 (citation to the record omitted). More

specifically, at the hearing on Appellant’s motion to withdraw his guilty plea,

he testified that Macon told his mother and grandmother that Appellant “had

no idea the car was stolen.” N.T. Hearing, 2/21/19, at 4. Appellant insists

that “he is innocent[,] and if [] Macon has evidence that supports Appellant’s

innocence, he should be afforded the opportunity to have [] Macon testify at

trial.” Appellant’s Brief in 330-2018 at 13.




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      In rejecting Appellant’s request to withdraw his plea, the trial court

found his assertion of innocence implausible.    See TCO at 9.      The record

supports that determination, as Appellant’s raising of his ‘new evidence’ claim

has been inconsistent and undeveloped. For instance, in September of 2018,

Appellant sent a pro se letter to the District Attorney expressing his desire to

plead guilty in both cases, as long as he would receive a sentence of either

probation or imprisonment in the county jail, rather than state incarceration.

See Commonwealth’s Response to Motion to Withdraw Plea, 2/15/19, at

Exhibit A. In the letter, Appellant claimed that he “did not truly know the

vehicle was stolen until [he and Macon] … ended up in Wayne County Jail [and

Macon] let [Appellant] know what he did to get the vehicle.”          Id. at 2

(unnumbered).     Although he allegedly discovered this potential defense,

Appellant pled guilty to receiving stolen property. As the trial court observes,

he “offered no plausible reason why he could not have asserted the defense

of not knowing the car was stolen before he pled guilty.” TCO at 9.

      Additionally, when Appellant later filed his motion to withdraw his plea,

he made no mention of Macon. Instead, he claimed that the “[n]ew evidence

that has come to light” was that he “was advised that the owner of the vehicle,

Catherine M. Kwashek, informed the police that the vehicle was not stolen by

[Appellant].” Motion to Withdraw Plea, 2/8/19, at 2 (unnumbered). Then, at

the hearing on his motion, Appellant changed his ‘new evidence’ claim yet

again, this time asserting that Macon had called his grandmother and mother

and told them that Appellant did not know the car was stolen.         However,

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Appellant did not present any testimony or affidavit from Macon, nor call to

the stand his mother or grandmother to confirm what Macon told them or that

he would be willing to testify on Appellant’s behalf if he proceeded to trial.

      Given this record, we cannot conclude that the trial court abused its

discretion in concluding that Appellant’s claim of innocence is implausible and

does not constitute a fair and just reason to permit him to withdraw his plea.

Appellant knew about his possible ‘lack-of-knowledge’ defense as early as

September of 2018, yet he still pled guilty in December. He also changed his

‘new evidence’ claim throughout the proceedings, and at the hearing on his

motion to withdraw, he offered no evidence to support his assertion that

Macon called his mother and grandmother to offer exonerating information.

Therefore, we agree with the trial court that Appellant did not make a colorable

demonstration that withdrawing his plea would promote fairness and justice.

      Second, in case 331-2018, Appellant claims that the court erred by

denying his motion to withdraw his plea when he has alleged an alibi defense

to the charges. Specifically, Appellant asserted in his motion to withdraw his

plea that, “[a]t the time of the alleged crimes, [he] was living in Florida with

Stephen Gresci.”    Motion to Withdraw Plea, 2/8/19, at 2 (unnumbered).

Appellant acknowledges that he “did not explain why he did not file a Notice

of Alibi Defense[,]” but he insists that “the fact that [he] is asserting he was

in Florida at the time of the crime and named his roommate, who could confirm

that Appellant was in Florida at the time of the crime, should have been

sufficient reason for the [t]rial [c]ourt to conclude [that] Appellant satisfied

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the ‘colorable demonstration’ that permitting withdrawal of the plea would

promote   fairness   and   justice   established   in   Carrasquillo,    supra….”

Appellant’s Brief in 331-2018 at 13-14.

      We disagree.    The trial court did “not find [Appellant’s] assertion of

innocence … to be compelling enough to promote fairness and justice….” TCO

at 10. The court reasoned:

             [Appellant] had months to review the discovery and
      determine his whereabouts prior to entering his guilty plea.
      [Appellant] indicated his clear intent to plead guilty in his letter to
      the District Attorney’s Office and [he] knowingly, voluntarily, and
      intelligently entered a plea of guilty on December 20, 2018. Now,
      [Appellant’s] basis for his withdraw of his plea is a claim of
      innocence[,] but such is not plausible. [Appellant], at the last
      possible moment and for the very first time one day prior to
      sentencing, contradicted his previous handwritten statements and
      numerous statements he made under oath to make the claim that
      he was living in Florida during the offense….


                                      ***

             The exceedingly late timing and sincerity of [Appellant’s]
      claims diminish [his] credibility. [Appellant] never filed any Notice
      of Alibi Witnesses with this [c]ourt. No evidence was presented
      that demonstrates [that Appellant] informed his attorney that he
      was living in Florida at the time of the alleged crime. No evidence
      was offered that [Appellant] did not know the date of the alleged
      incident. No evidence was offered that [Appellant] was precluded
      from either knowing the date of the alleged crime or presenting
      an alibi defense to this [c]ourt. [Appellant] did not include in his
      letter to the District Attorney in September of 2018 that he was in
      Florida when the police say he committed the crime. Only one
      day before he [was] to be sentenced [did Appellant] assert his
      innocence. [Appellant] indicated a clear intention to plead guilty
      in his letter and on the date of his guilty plea.

Id.



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      Based on the court’s discussion and our review of the record, we

conclude that the court did not abuse its discretion in denying Appellant’s

motion to withdraw his plea. The record supports the court’s determination

that his alibi defense is not credible and, thus, his assertion of innocence is

not plausible. Accordingly, we affirm Appellant’s judgments of sentence in

both case 330-2018 and 331-2018.

      Judgments of sentence affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2020




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