J-S29040-18

                                2018 Pa. Super. 180

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JERARD STEVENS DAVIS                     :
                                          :
                    Appellant             :   No. 3180 EDA 2017

          Appeal from the Judgment of Sentence August 21, 2017
    In the Court of Common Pleas of Lehigh County Criminal Division at
                     No(s): CP-39-CR-0001247-2014,
            CP-39-CR-0001254-2014, CP-39-CR-0004149-2014


BEFORE:    PANELLA, J., MURRAY, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                           FILED JUNE 22, 2018

      Appellant Jerard Stevens Davis appeals from the judgment of sentence

entered by the Court of Common Pleas of Lehigh County after Appellant pled

guilty to Possession of a Controlled Substance with Intent to Deliver (PWID)

and Resisting Arrest. Appellant contends the lower court abused its discretion

in denying his motion to withdraw his guilty pleas.          Finding Appellant

endeavors to manipulate the criminal justice system in attempting to withdraw

his guilty pleas, we affirm.

      On February 9, 2015, Appellant pled guilty to two counts of PWID and

one count of Resisting Arrest on three separate dockets.      In exchange for

these pleas, the Commonwealth agreed that Appellant’s minimum sentence in

the PWID cases would not exceed thirty-eight (38) months, all sentences

would run concurrently, and the Commonwealth would not pursue any of the

remaining charges. On the day of Appellant’s pleas, the Commonwealth was


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S29040-18



ready to proceed to trial as jurors were present and were waiting for the jury

selection process.

      Appellant was scheduled to be sentenced on March 6, 2015, but after

he failed to appear in court, a bench warrant was issued for his arrest. It was

later discovered that Appellant had been arrested in North Carolina for drug

charges on March 5, 2015 and was incarcerated at the time of the sentencing

hearing in this case. Pennsylvania authorities placed a detainer on Appellant

in North Carolina. When Appellant posted bail in the North Carolina case, he

was transported to the Lehigh County Jail on February 18, 2017.

      Appellant was promptly brought before the trial court on February 21,

2017; however, the matter was continued multiple times due to (1) the

retirement of the Honorable William E. Ford, the judge who accepted

Appellant’s plea and (2) the trial court’s decision to grant Appellant’s counsel,

Robert Goldman, Esq. permission to withdraw. On June 9, 2017, the Lehigh

County Public Defender’s Office filed a Motion to Withdraw Guilty Pleas in

which Appellant asserted his innocence, alleged that his plea agreement was

predicated on an erroneous prior record score, and contended his pleas were

unlawfully induced by the withdrawal of his prior counsel.

      On July 20, 2017, the Honorable Maria L. Dantos held an evidentiary

hearing on Appellant’s Motion to Withdraw Guilty Pleas. Appellant testified on

his own behalf and the Commonwealth presented the testimony of Detective

Jason Krasley, a member of the Vice and Intelligence Unity of the Allentown




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Police Department. After reviewing the record and the testimony elicited at

the evidentiary hearing, this trial court made the following findings of fact:

             On February 9, 2015, with a jury ready to be selected,
      [Appellant] indicated that he wished to accept a guilty plea in the
      within matters.[FN1] The plea entailed, inter alia, capping the
      minimum sentence at thirty-eight (38) months.                Attorney
      Goldman and the prosecutor believed [Appellant] to have a prior
      record score of 5…; [FN2] [Appellant], however, thought that his
      prior record score was only a 4. Nevertheless, [Appellant] made
      the decision to enter in to a plea deal on all of his three (3) cases.
      Trial counsel was ready to proceed to trial in Case No. 1247/2014
      on February 9, 2015. [FN3] However, [Appellant’s] decision to enter
      into a guilty plea obviated the need for a trial. [FN4]

            [FN1: Prior to jury selection, Appellant asked if he
            could speak with the prosecutor and Detective Krasley
            to negotiate a guilty plea in the within matters. It was
            he who approached the Commonwealth to attempt to
            dispose of these cases via a non-trial disposition.
            Detective Krasley recalls Appellant indicating that he
            wanted to get this “over with,” and that Appellant
            apologized to him.]

            [FN2: Appellant is thirty-nine years old, and has an
            extensive criminal history which includes, inter alia,
            eleven (11) adult arrests with six (6) adult
            convictions.  Appellant’s prior convictions include
            numerous PWID offenses.]

            [FN3: Attorney Goldman, via correspondence dated
            January 27, 2015, indicated to Appellant that he
            would proceed to trial on the first case, but intended
            to withdraw his appearance from the other two cases…
            should they not be resolved by way of a guilty plea.]

            [FN4: Appellant had waived his Preliminary Hearing
            in Case No. 1247/2014.]

            On that date, Judge Ford conducted an extensive guilty plea
      colloquy[, during which Appellant] acknowledged the terms of his
      plea agreement; indicated that he read and understood the

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     written plea colloquy; stated that he understood that he did not
     have to give up his rights but could proceed to trial; affirmed that
     it was his desire to enter the guilty plea; denied having any drugs,
     alcohol or other medication that would affect his ability to know
     what he was doing; posed no questions to the judge or made any
     indication of his desire not to go through with the guilty plea [FN5];
     articulated that no one was forcing or threatening him to plead
     guilty; testified that no promises were made to him other than the
     plea agreement; expressed satisfaction with his attorney; and
     acknowledged the facts as recited by the prosecutor.

           [FN5: During the guilty plea colloquy, Judge Ford
           repeatedly gave Appellant an opportunity to stop with
           the hearing and to proceed to trial. In addition, after
           Appellant entered his guilty pleas and prior to
           releasing the jurors from service, Judge Ford stated
           the following to Appellant:

              THE COURT: Between now and the date of
              sentencing – how do I say this? If, in case
              number 1247, which is the one that was called
              for trial today, if you decide that you want to
              withdraw the plea in that case, that’s one of the
              possession with intent to deliver cases. … If you
              indicate that I didn’t do this, I’m not guilty, the
              Commonwealth should prove the case, that’s
              not going to be a sufficient reason… to withdraw
              the plea. We’re ready for trial today. We have
              jurors here, and in a moment I’m going to
              release all of these jurors.        The point is,
              everybody’s ready to go. So that will not be a
              sufficient reason to withdraw the pleas. I want
              to make that clear. Do you understand that,
              sir?

              APPELLANT: Yes.

           N.T. 2/9/15, pp. 17-18.

           In his Petition to Withdraw Guilty Plea[s], [Appellant] claims
     that he is not guilty of the charges filed against him and to which
     he ple[d] guilty. He further alleges that the plea agreement was
     predicated on an erroneous prior record score, and that


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     [Appellant’s] guilty plea was unlawfully induced by prior counsel.
     [The trial court found] these claims to be without merit.

            At the time of the hearing on [Appellant’s] Motion to
     Withdraw Guilty Plea, [Appellant] claimed his innocence. Indeed,
     [Appellant] indicated that while he possessed the cocaine, he did
     not possess it with an intent to deliver it in Case No. 1247/2014.
     Specifically, [Appellant] indicated that he was merely a passenger
     in a vehicle driven by Felicita Adorno. Ms. Adorno previously had
     made arrangements with a Confidential Informant (unbeknownst
     to her) for the purchase of a specified amount of crack cocaine.
                                   ***
     As a result of this controlled drug purchase, [Appellant] and Ms.
     Adorno were arrested by Detective Krasley of the Allentown Police
     Department. A search of [Appellant’s] person at the Allentown
     Police Department yielded crack cocaine in [Appellant’s] buttocks.
     Appellant makes a similar statement with regard to Case No.
     1254/2014. In that case, [Appellant] was arrested after he was
     stopped for a traffic violation. Again, a search of [Appellant’s]
     person at the Allentown Police Department yielded cocaine in
     [Appellant’s] buttocks. [Appellant] admitted possession of the
     controlled substance, but denied having an intent to deliver it.
     Finally, in Case No. 4149/2014, [Appellant] claims that he did not
     resist arrest, but rather that he was abused and assaulted by the
     police officers. [Appellant] stated that Attorney Goldman had
     acquired the audio and video of the incident which supports his
     innocence. [FN6] [Appellant] also testified that between the date of
     his guilty plea and the scheduled date of his sentencing, he told
     Attorney Goldman that he wanted to withdraw his guilty plea. In
     fact, [Appellant] indicated that he thought that a Motion to
     Withdraw Guilty Pleas had been filed [by] Attorney Goldman.
     Interestingly, [Appellant] failed to mention that to [the trial court]
     when he first came before this Court on February 21, 2017 and
     March 15, 2017.

           [FN6: Appellant knew about the existence and the
           content of this audio and video recording at the time
           that he entered his guilty plea before Judge Ford.]

            Contrary to [Appellant’s] assertions, Detective Krasley
     testified that in Case No. 1247/2014, pre-recorded buy money
     was located on [Appellant]. In fact, [Appellant] had half (1/2) of
     the money on his person, [FN7] and Ms. Adorno, the driver of the
     vehicle, had the other half (1/2) of the pre-recorded money on

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      her at the time of their arrests. Furthermore, the cocaine located
      in [Appellant’s] buttocks was packaged in separate multiple
      baggies, consistent with selling or delivering.[FN8] No drug use
      paraphernalia was located on [Appellant’s] person. In addition,
      surveillance observed Ms. Adorno approach the Confidential
      Informant, then return to [Appellant] and hand him money, who
      in turn provided her with something that she then gave to the
      Confidential Informant. Detective Krasley also noted that Ms.
      Adorno is the mother of [Appellant’s] child. Ms. Adorno, the Co-
      Defendant in Case No. 1247/2014, entered a guilty plea and was
      sentenced during [Appellant’s] two (2) year absence. As a result
      of pleading guilty and already being sentenced, Ms. Adorno has
      no motivation now to cooperate with the Commonwealth in the
      prosecution of [Appellant’s] case.

            [FN7: Appellant had approximately $1,650.00 on his
            person, yet he was unemployed at the time of his
            arrest.  Ms. Adorno similarly had approximately
            $1,650.00 on her person when taken into custody.]

            [FN8: The crack cocaine in Case No. 1247/2014 and
            Case No. 1254/2014 has since been destroyed, and is
            no longer in the possession of the Allentown Police
            Department. Indeed, the log records establish that
            the crack cocaine was destroyed in both cases on April
            5, 2017.]

Trial Court Opinion (“T.C.O.”), 8/14/17, at 1-8 (internal citations omitted).

      Based on these findings, the trial court denied Appellant’s Motion to

Withdraw Guilty Pleas on August 14, 2017. Thereafter, on August 21, 2017,

the lower court sentenced Appellant to an aggregate term of three (3) to eight

(8) years’ imprisonment. Appellant filed a post-sentence motion, which was

subsequently denied. Appellant filed a timely appeal and complied with the

trial court’s direction to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).




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       Appellant’s sole claim on appeal is whether the trial court abused its

discretion in denying his pre-sentence motion to withdraw his guilty pleas.

Specifically, Appellant argues that he established fair and just reasons for

withdrawing his plea by (1) alleging that he was coerced into accepting a plea

by his plea counsel’s indication that he would withdraw from representation if

Appellant did not enter a plea agreement and (2) presenting a colorable claim

of innocence.1

       With respect to the withdrawal of a guilty plea or a nolo contendere plea,

our courts have held the following:

       [W]e recognize that 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 Supreme Court of Pennsylvania
       recently clarified the standard of review for considering a trial
       court's decision regarding a defendant's pre-sentence motion 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.

       Commonwealth v. Carrasquillo, 631 Pa. 692, 115 A.3d 1284,
       1285, 1291–92 (2015) (holding there is no per se rule
       regarding pre-sentence request to withdraw a plea, and bare
____________________________________________


1 Although Appellant had originally claimed that his plea was predicated on an
incorrect prior record score for the purpose of sentencing, Appellant concedes
on appeal that the lower court correctly calculated his prior record score to be
a five (5). See Appellant’s Brief, at 20, n.1.

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      assertion of innocence is not a sufficient reason to require a court
      to grant such request). We will disturb a trial court's decision on
      a request to withdraw a guilty plea only if we conclude that the
      trial court abused its discretion. Commonwealth v. Gordy, 73
A.3d 620, 624 (Pa.Super. 2013).

Commonwealth v. Blango, 150 A.3d 45, 47 (Pa.Super. 2016).

      First, Appellant claims that he should have been allowed to withdraw his

pleas that he was allegedly coerced into entering by counsel’s indication that

he would withdraw his representation if Appellant did not plead guilty in all

three cases.   In reviewing Appellant’s suggestion that his pleas were not

knowing or voluntary, we are guided by the following standard:

      In order for a guilty plea to be constitutionally valid, the guilty
      plea colloquy must affirmatively show that the defendant
      understood what the plea connoted and its consequences. This
      determination is to be made by examining the totality of the
      circumstances surrounding the entry of the plea. Thus, even
      though there is an omission or defect in the guilty plea colloquy,
      a plea of guilty will not be deemed invalid if the circumstances
      surrounding the entry of the plea disclose that the defendant had
      a full understanding of the nature and consequences of his plea
      and that he knowingly and voluntarily decided to enter the plea.

Commonwealth v. Eichinger, 631 Pa. 138, 155–56, 108 A.3d 821, 832

(2014) (citations omitted).

      Our review of the record belies Appellant’s claim that he was coerced

into pleading guilty by his plea counsel. The trial court found that while Atty.

Goldman advised Appellant that he intended to seek to withdraw in Case No.

1254/2014 and 4149/2014 if Appellant did not plead guilty, Atty. Goldman

was ready and willing to represent Appellant at trial in Case No. 1247/2014,

had Appellant not approached the prosecution to ask for a plea agreement.



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      Further, the trial court’s extensive guilty plea colloquy demonstrated

that Appellant entered a voluntary, knowing, and intelligent plea. Appellant

indicated that he understood the nature of charges against him, the factual

bases for his pleas, and the rights he was relinquishing in entering the pleas.

Appellant averred that no threats or promises were made to him to plead

guilty and he expressed satisfaction with Atty. Goldman’s representation.

Appellant posed no questions to the trial judge or gave any indication that he

did not want to enter the guilty pleas.     Therefore, the trial court properly

exercised its discretion in determining that this argument did not provide

sufficient reason to allow Appellant to withdraw his guilty pleas.

      Second, Appellant argues the trial court erred in denying his request to

withdraw his pleas as Appellant has presented a colorable claim of innocence.

As noted above, our Supreme Court has emphasized that a defendant’s mere

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

pre-sentence motion to withdraw a guilty plea. See Carrasquillo, supra.

Rather, the Supreme Court clarified 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.

Carrasquillo, 631 Pa. at 705–706, 115 A.3d at 1292 (citation omitted).




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      In Carrasquillo, the Supreme Court concluded that the trial court acted

within its discretion to refuse to allow the appellant to withdraw his guilty plea

given (1) the appellant failed to offer a plausible innocence claim given his

bizarre claim that he was compelled by the Antichrist to rape the child victim

and (2) the prosecution presented strong evidence of Appellant’s guilt at the

plea hearing.   In Commonwealth v. Hvizda, 632 Pa. 3, 116 A.3d 1103

(2015), the companion case to Carrasquillo, the Supreme Court upheld the

trial court’s decision to refuse to allow the defendant to withdraw his guilty

plea, finding the defendant’s assertion of innocence was implausible and

rebutted by the prosecution’s presentation of taped conversations in which the

defendant admitted in prison that he had murdered his wife.                    In

Commonwealth v. Baez, 169 A.3d 35, 40 (Pa.Super. 2017), this Court

similarly found that the appellant’s bald assertion of innocence was not

plausible and did not constitute a fair and just reason to withdraw his plea

when Appellant failed to raise any defenses to the charges besides an

unsupported claim that he was coerced to plead guilty by the trial court’s

alleged threats to impose a sentence of sixty-five years’ imprisonment if

Appellant was convicted.       Similarly, in Blango, this Court found the

appellant’s attempt to withdraw his plea based on his assertion of innocence

was “an attempt to manipulate the system” when he had previously testified

against his co-conspirators and admitted that he was the first to pull the

trigger of his firearm in a fight between two groups of high school students.

Blango, 150 A.3d at 48.

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      Likewise, in the instant case, the trial court found that Appellant’s

“assertion of innocence is not plausible, but is rather an ‘attempt to manipulate

the system.’” T.C.O. at 8, quoting Blango, supra. The trial court observed

that Appellant entered his guilty plea on the day his trial was scheduled to

begin and then waited to raise his desire to withdraw his plea long after the

threat of trial had passed; Appellant chose not to assert his claim of innocence

until two years after he had entered his guilty plea and had subsequently

appeared before the trial court three times. Further, the trial court explained:

      The record and evidentiary proffer made by the Commonwealth in
      this case belies [Appellant’s] assertion of innocence. In Case No.
      1247/2014, Ms. Adorno was observed by members of the
      Allentown Police Department approach the Confidential Informant,
      return to [Appellant] and hand him money, who in turn provided
      her with something that she then gave to the Confidential
      Informant. Of note, Ms. Adorno is the mother of [Appellant’s]
      child. Also, half (1/2) of the pre-recorded buy money was found
      on [Appellant] and the other half (1/2) was found on Ms. Adorno
      at the time of their arrests on August 12, 2013. [Appellant] was
      unemployed at the time, yet he had over $1,600.00 on his person.
      Also, in both Case No. 1247/2014 and Case No. 1254/2014, a
      search of [Appellant’s] person at the Headquarters of the
      Allentown Police Department yielded crack cocaine in [Appellant’s]
      buttocks. The drugs were packaged in separate multiple baggies,
      consistent with selling or delivering.
                                       ***
             Moreover, in Case No. 4149/2014, it is nonsensical to
      believe that [Appellant] entered into a guilty plea on February 9,
      2015, if the video and audio recording that memorialized the
      events surrounding the charge of Resisting Arrest had shown that
      he was abused and assaulted by officers. These facts indicate that
      [Appellant’s] assertion of innocence in these cases is bare, non-
      colorable, and implausible.




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T.C.O. at 9-10. We agree with the trial court’s assertion that Appellant’s claim

of innocence was implausible as it was unsupported and rebutted by the

evidence presented by the Commonwealth.

      Moreover, we also agree with the trial court’s finding that Appellant’s

guilty plea could not be withdrawn because the Commonwealth would suffer

substantial prejudice from the withdrawal. As noted above, Appellant did not

assert his alleged innocence until over two years after he entered his guilty

plea; in that time, his co-defendant, Felicita Adorno, had already entered a

guilty plea and had been sentenced.     The trial court found that Adorno’s lack

of motivation to cooperate with the prosecution would severely prejudice the

Commonwealth if      it sought   to   try Appellant.     T.C.O. at    8   (citing

Commonwealth v. Ross, 498 Pa. 512, 447 A.2d 943 (1982) (finding that

the “request to withdraw the plea, which had been made after the dismissal

of numerous key Commonwealth witnesses in reliance on the plea, was

properly denied”). Further, the trial court also noted that after Appellant had

entered his guilty pleas in this case, the Commonwealth had destroyed the

cocaine seized from Appellant’s person in both Case No. 1247/2014 and Case

No. 1254/2014. Therefore, we cannot conclude that the trial court abused its

discretion in finding that the prosecution would be substantially prejudiced if

Appellant were allowed to withdraw his guilty plea.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/18




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