J-S75007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TROY WILSON

                            Appellant               No. 2749 EDA 2013


             Appeal from the Judgment of Sentence July 23, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004769-2011


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                             FILED APRIL 01, 2015

        Appellant, Troy Wilson, appeals from the July 23, 2013 aggregate

judgment of sentence of 12½ to 25 years’ imprisonment, imposed after he

pled guilty to one count each of aggravated assault and robbery.1       After

careful review, we affirm.

        The relevant factual and procedural history, as gleaned from the

certified record, follows. On May 1, 2013, Appellant’s trial commenced, in

absentia. On May 7, 2013, before the close of trial, Appellant appeared in

court and pled guilty. Thereafter, on May 10, 2013, Appellant filed a motion

to withdraw his guilty plea. In said motion, Appellant argued that he could

not have made “a fully informed decision as to whether to plead guilty (as
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1
    18 Pa.C.S.A. §§ 2702(a) and 3701(a)(1), respectively.
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under the circumstances it would have been necessary to obtain full

transcripts of the three previous days’ proceedings given [Appellant]’s

absence from trial[])[.]” Appellant’s Pre-Sentence Motion to Withdraw Guilty

Plea, 5/10/13, at 3.2          Notably, Appellant’s motion did not assert his

innocence as a basis for requesting to withdraw his guilty plea; however,

Appellant did raise a claim of innocence at the July 23, 2013 hearing on his

motion. N.T., 7/23/13, at 25. At the conclusion of said hearing, the trial

court denied Appellant’s motion and imposed the aforementioned aggregate

sentence of 12½ to 25 years’ imprisonment.3

       On July 25, 2013, Appellant filed a timely post-sentence motion

requesting, inter alia, to withdraw his guilty plea.    Post-Sentence Motion,

7/25/13, at 5.4 On September 17, 2013, the trial court denied Appellant’s

post-sentence motion. Thereafter, on September 27, 2013, Appellant filed a

timely notice of appeal.5

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2
 Appellant’s motion to withdraw his guilty plea does not contain pagination;
accordingly, we have assigned each page a corresponding page number.
3
  Specifically, Appellant was sentenced to ten to 20 years’ imprisonment on
the aggravated assault charge, and a consecutive two and one-half to five
years’ imprisonment on the robbery charge.
4
   Appellant’s post-sentence motion also does not contain pagination;
therefore, we have assigned each page a corresponding page number.
5
  On October 9, 2013, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal in accordance with
Pennsylvania Rule of Appellate Procedure 1925(b), and on October 24, 2013,
(Footnote Continued Next Page)


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      On appeal, Appellant raises the following issue for our review.

             Did the [trial] court err when it [] denied
             [A]ppellant’s request to withdraw his guilty plea
             when the request was made by written motion prior
             to sentencing, [A]ppellant presented fair and just
             reasons for the withdrawal of his plea, and the
             Commonwealth was not substantially prejudiced in
             reliance upon [A]ppellant’s plea?

Appellant’s Brief at 5.

      In assessing challenges to the validity of a guilty plea, we are guided

by the following standard of review. Generally, “upon entry of a guilty plea,

a defendant waives all claims and defenses other than those sounding in the

jurisdiction of the court, the validity of the plea, and what has been termed

the ‘legality’ of the sentence imposed[.]”        Commonwealth v. Eisenberg,

98 A.3d 1268, 1275 (Pa. 2014). “Our law presumes that a defendant who

enters a guilty plea was aware of what he was doing. He bears the burden

of proving otherwise.”          Commonwealth v. Yeomans, 24 A.3d 1044,

1047 (Pa. Super. 2011) (citation omitted).

                    [A] defendant has no absolute right to
             withdraw a guilty plea; rather, the decision to grant
             such a motion lies within the sound discretion of the
             trial court. In the seminal case of Commonwealth
             v. Forbes, [] 299 A.2d 268 (1973), the Supreme
             Court set forth the standard for determining when a
             motion to withdraw a guilty plea prior to sentencing
             should be granted.         The Court stated that
             “[a]lthough there is no absolute right to withdraw a
                       _______________________
(Footnote Continued)

Appellant timely complied. The trial judge has since retired; accordingly, no
Rule 1925(a) opinion was filed in this matter.



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            guilty plea, properly received by the trial court, it is
            clear that a request made before sentencing …
            should be liberally allowed.” [Id. at 271].

Commonwealth v. Muhammad, 794 A.2d 378, 382-383 (Pa. Super. 2002)

(internal citation omitted).

      Further, in Forbes, “[t]he Supreme Court … fashioned a test to apply

in determining whether to grant a pre-sentence motion for withdrawal of a

guilty plea[.]”   Commonwealth v. Katonka, 33 A.3d 44, 46 (Pa. Super.

2011), quoting Forbes, supra at 271. “[T]he test to be applied by the trial

courts is fairness and justice.” Id. “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.’”

Commonwealth v. Prendes, 97 A.3d 337, 351-352 (Pa. Super. 2014)

(citation omitted), appeal denied, 105 A.3d 736 (Pa. 2014). “As a general

rule, the mere articulation of innocence [is] a ‘fair and just’ reason for the

pre-sentence withdrawal of a guilty plea unless the Commonwealth has

demonstrated that it would be substantially prejudiced.” Id. at 352 (internal

quotation marks and citation omitted).

                   Of the considerations outlined in Forbes, the
            critical one is the presence or lack of prejudice to the
            Commonwealth. … Generally speaking, prejudice
            would require a showing that due to events occurring
            after the plea was entered, the Commonwealth is
            placed in a worse position than it would have been
            had trial taken place as scheduled. When a guilty
            plea is withdrawn before sentencing, the withdrawal
            usually does not substantially prejudice the
            Commonwealth if it simply places the parties back in

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               the pretrial stage of proceedings. Mere speculation
               that witnesses would not appear at a subsequent
               trial or would change their stories does not alone rise
               to the level of substantial prejudice.

                      When, however, a defendant attempts to
               withdraw a guilty plea entered after presentation of
               the Commonwealth’s case-in-chief, prejudice to the
               Commonwealth … although difficult to prove, may be
               a very real possibility. Substantial prejudice exists if
               a defendant obtains a full preview of the
               Commonwealth’s evidence before deciding upon [his]
               trial strategy. Withdrawal of the plea also might be
               a means of obtaining an entirely new jury for a
               defendant anytime he feels that the jury originally
               selected is not favorably disposed to his cause….
               Substantial prejudice also exists if a defendant now
               has a script of the testimony of the principal
               Commonwealth witness….        Only when compelling
               reasons exist, such as a court’s improper acceptance
               of a guilty plea, is a court permitted, after the
               Commonwealth’s case had commenced and a guilty
               plea entered, to allow the withdrawal of the plea of
               guilty.

Id. at 353 (internal quotation marks and citations omitted).

          On appeal, Appellant asserts that “he is innocent of the charges[,]”

and that “[t]his constitutes a fair and just reason for withdrawing his plea.”

Appellant’s Brief at 20. Appellant further argues that “the record does not

contain sufficient evidence that the Commonwealth would be substantially

prejudiced in allowing [Appellant] to withdraw his plea and proceeding to

trial.”     Id. at 27.   In support of this averment, Appellant asserts 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.” Id. at 27-28.


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        Upon   review,   we    conclude    that   the   Commonwealth   would    be

substantially prejudiced by allowing Appellant to withdraw his guilty plea.

The record reveals that Appellant failed to appear for his jury trial set to

begin on May 1, 2013.           Accordingly, the Commonwealth requested to

proceed in absentia, which the trial court granted. N.T., 5/1/13, at 4-7. A

jury was empaneled and sworn in, and trial commenced on said date. The

Commonwealth began the presentation of its case-in-chief over the course

of the next two days.         Trial was set to continue on May 7, 2013, when

Appellant voluntarily appeared and expressed his desire to plead guilty.

N.T., 5/7/13, at 4.      The trial court then proceeded to ascertain whether

Appellant was knowingly, intelligently, and voluntarily pleading guilty. Id. at

9-16.

        On appeal, Appellant does not challenge that his plea was not

knowingly, intelligently, or voluntarily entered; rather, he solely argues that

he should be allowed to withdraw the plea because he is innocent.              The

courts of this Commonwealth have repeatedly held that “[a]bsent any

compelling reasons, such as the court’s improper acceptance of the plea,

Appellant cannot show the trial court erred in refusing to allow him to

withdraw his guilty plea entered after the Commonwealth had presented its

case.”   Prendes, supra at 355 (citation omitted).          More importantly, our

Supreme Court has explicitly stated that “[w]hen a defendant pleads guilty

after the Commonwealth has commenced its case, we hold that the


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Commonwealth will be ‘substantially prejudiced’ if the defendant is allowed

to withdraw his plea.” Commonwealth v. Whelan, 392 A.2d 1362, 1364

(Pa. 1978) (plurality), cert. denied, Whelan v. Pennsylvania 440 U.S. 926

(1979).6     Instantly, Appellant does not claim his plea was improperly

accepted, nor has he advanced any other compelling reason as to why he

should be permitted to withdraw his guilty plea.       Therefore, because the

Commonwealth has presented the majority of its case in-chief, we conclude

the Commonwealth has shown “substantial prejudice.” Id. Accordingly, the

trial court properly denied Appellant’s motion to withdraw his guilty plea.

See Prendes, supra at 355.

       Based on the foregoing, we affirm the trial court’s July 23, 2013

judgment of sentence.

       Judgment of sentence affirmed.




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6
  We note that “[w]hile the ultimate order of a plurality opinion; i.e. an
affirmance or reversal, is binding on the parties in that particular case, legal
conclusions and/or reasoning employed by a plurality certainly do not
constitute binding authority.” In the Interest of O.A., 717 A.2d 490, 496
n.4 (Pa. 1998). Nevertheless, we may consider said plurality opinions as
persuasive authority.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




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