J-S22008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    KHALIL WALKER,

                             Appellant                No. 3458 EDA 2016


      Appeal from the Judgment of Sentence Entered September 30, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002774-2015


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 25, 2018

        Appellant, Khalil Walker, appeals from the judgment of sentence of an

aggregate term of 30-60 years’ incarceration, following his guilty plea to third-

degree murder and related offenses. Appellant’s sole claim on appeal is that

the trial court abused its discretion when it denied his pre-sentence motion to

withdraw his guilty plea. After careful review, we affirm.

        The facts underlying Appellant’s conviction are not germane to this

appeal. The trial court set forth the relevant procedural history of this case

as follows:
              On April 26, 2016, [Appellant] entered an open guilty plea
        before this court to charges of third-degree murder, robbery,
        burglary, arson, possession of an instrument of crime[,] and
        conspiracy. A pre-sentence report and a mental health evaluation
        were ordered and sentencing was scheduled for June 27, 2016.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S22008-18


      On June 27, 2016, [Appellant] requested a continuance until July
      15, 2016. However, on July 14, 2016, [Appellant] filed a motion
      to withdraw his guilty plea. The motion was heard on July 15,
      2016[,] and a bifurcated evidentiary hearing was held on August
      1, 2016 and August 25, 2016. [Appellant]’s motion to withdraw
      his guilty plea was denied on September 26, 2016. On September
      30, 2016, [Appellant] was sentenced to an aggregate term of not
      less than thirty (30) years nor more than sixty (60) years of state
      incarceration. A notice of appeal was filed on October 20, 2016.
      On November 1, 2016, this court ordered [Appellant] to file a
      [Pa.R.A.P. 1925(b)] statement…. [Appellant] filed his statement
      … on November 22, 2016.

Trial Court Opinion (TCO), 6/30/17, at 1. The trial court subsequently filed its

Rule 1925(a) opinion on June 30, 2017.

      Appellant now presents the following question for our review: “Whether

the denial of [Appellant]’s application of the withdrawal of his presentence

guilty plea constitutes an abuse of discre[]tion[?]” Appellant’s Brief at 4.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Sandy L.V.

Byrd, we conclude that the trial court did not abuse its discretion when it

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

comprehensively discusses and properly disposes of the question presented.

See TCO at 2-6. Accordingly, we affirm based on the reasons set forth in the

trial court’s opinion.

      Judgment of sentence affirmed.




                                     -2-
J-S22008-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/18




                          -3-
                                                                                         Circulated 06/01/2018 01:55 PM




           IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                       TRIAL DIVISION - CRIMINAL SECTION


 COMMONWEALTH OF PENNSYLVANIA                                             CP-51-CR-0002774-2015

                                CP-51-CR.0002774-2015 Comm. v Walter, Khali
                                                 Opinion
                       V.




       KHALIL WALKER
                                                              im              UPERIOR COURT


                                                 OPINION

Byrd, J.                                                                                      June 30, 2017


       On April 26, 2016, Khalil Walker entered an open guilty plea before this court to charges

of third-degree murder, robbery, burglary, arson, possession of an instrument of crime and

conspiracy.   A pre -sentence report and a mental health evaluation were ordered and sentencing

                                                                                     until July
was scheduled for June 27, 2016. On June 27, 2016, defendant requested a continuance

15, 2016. However, on July 14, 2016, defendant filed a motion to withdraw his
                                                                              guilty plea. The

                                                                                on August
motion was heard on July 15, 2016 and a bifurcated evidentiary hearing was held
                                                                                                                1,


                                                                                    on
2016 and August 25, 2016. Defendant's motion to withdraw his guilty plea was denied

September 26, 2016. On September 30, 2016, defendant was sentenced to an aggregate term of
                                                                                           not

less than thirty (30) years nor more than sixty (60) years of state incarceration. A notice of appeal

was filed on October 20, 2016. On November I, 2016, this court ordered defendant to file
                                                                                         a


statement of matters complained of on appeal.                    Defendant filed his statement of matters

complained of on appeal on November 22, 2016.                                                 FILED
                                                                                              JUN 3   ,0 2017


                                                                                           AppealsiPosl
                                                                                        Moe of Judicial Flucord3

                                                         1
          Defendant raises the following issue in his statement of matters complained of on appeal:


              The Court erred by denying Appellant's pre -sentence request to withdraw
              his guilty plea.


          There is no absolute right to withdraw a guilty plea; the decision to grant the motion lies

within the sound discretion of the trial court. Commonwealth        v.   Hutchins, 683 A.2d 674, 675 (Pa.

Super. 1996). When a defendant moves to withdraw a guilty plea before imposition of sentence,

the trial court's 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 be a substantial prejudice to the Commonwealth.                Commonwealth   v.   Forbes,

299 A,2d 268, 271 (Pa. 1973). In contrast, a "showing of prejudice on the order of manifest

injustice is required before withdrawal is properly justified" after a sentence has been imposed.

Commonwealth        v.   Carpenter, 725 A.2d 154, 164 (Pa. 1999) (quoting Commonwealth         v.   Shaffer,

446 A.2d 591, 593 (Pa. 1982)).Until recently, the common pleas courts understood these general

statements to mean that the Supreme Court required acceptance of a bare assertion of innocence

as a fair and just reason for withdrawal    of a guilty plea before imposition of sentence.

          However, the Supreme Court has since clarified the matter: "a bare assertion of innocence

is not, in and   of itself, a sufficient reason to require a court to grant such a request." Commonwealth

v.   Carrasquillo, 115 A.3d 1284, 1285 (Pa. 2015). Further, 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.      Indeed, even before Carrasquillo, the Superior Court held "that the innocence

assertion could be discredited, but only where the record plainly demonstrates an ulterior motive

and not where such motive must be inferred." Commonwealth                v.   Tennison, 969 A.2d 578 (Pa.



                                                     2
Super. 2009). While the standard for a guilty plea withdrawal following imposition of sentence

has remained unchanged, the standard for a guilty plea withdrawal prior to sentencing is now

understood to be more stringent in the wake of Carrasquillo. Trial judges must evaluate the record

to balance what promotes fairness and justice with the prejudice granting the motion would cause

the Commonwealth.

        Here, defendant has not presented a fair and just reason as to why his motion should be

granted. While he claims innocence and that his guilty plea was not entered into knowingly,

intelligently, and voluntarily that is not supported by the record. Further, the prejudice to the

Commonwealth, as evidenced by defendant's phone calls and testimony from the evidentiary

hearing, Would be substantial.

        First, defendant attempts to justify his motion by an assertion of innocence. However, as

stated above, "a bare assertion of innocence is not, in and of itself, a sufficient reason to require a

court to grant such a request." Indeed, the innocence assertion can be discredited where the record

plainly demonstrates an ulterior motive. Tennison, 969 A.2d at 578. In the instant case, the record

plainly demonstrates an ulterior motive, to wit, entering the guilty plea to avoid proceeding to trial

before a jury he did not like, then attempting to withdraw the guilty plea after obtaining a preview

of the Commonwealth's evidence and ascertaining the sentence the prosecutor was seeking.

       At the evidentiary hearing, when asked if the reason he was withdrawing his guilty plea

was the length of the sentence that the Commonwealth was seeking, he responded "That, and that

I'm not guilty." N.T., 8/1/2016, at 39. However, during the oral guilty plea colloquy, defendant

agreed to the factual predicate offered by the prosecutor and stated that he was guilty as charged:




                                                  3
                The Court: Mr. Walker, did you hear the summary just offered?
                The Defendant: Yes.
                The Court: Is that a fair account of what happened?
                The Defendant: Yes.
                The Court: Are those the facts you are pleading guilty to?
                The Defendant: Yes.
                The Court: Are you pleading guilty because you are guilty?
                The Defendant: Yes.
N.T., 4/26/2016, at 64.

         Further, defendant only entered his guilty plea after a jury had been selected. Defendant

stated during a phone call to a friend who had asked if his reason for fearing he was going to jail

was the jury:

                Yeah, the jury. It seems like -- it seems like all 60 people was nutty.
                They all liked the DA. I don't know what was going on. Then it seems
                like the judge was, like, on some racist shit. He like the white people
                more than the black people and he black himself. Shit's crazy.

Commonwealth's Exhibits C-3 and C-4, admitted into evidence N.T., 8/25/2016, at 53.

         Although this was an open guilty plea, defendant was offered an opportunity 'help himself'

by cooperating with the Commonwealth and providing information against his co-conspirators in

a   proffer session. N.T., 4/26/2016, at 15-20. This he declined to do. Indeed, Detective James

Pitts testified that defendant was "trying to get more information than give information at the

proffer session." N.T. 8/1/2016, at 52, 55, 67.        Thus, having failed to cooperate with the

Commonwealth, defendant lost the opportunity to have the prosecutor request a favorable

sentence, and was bound to an open plea.

         Where a defendant enters a guilty plea and then attempts to withdraw it after a jury has

been selected, as in this case, the motion "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,

even though there were no grounds for a mistrial." Commonwealth         v.   Morales, 305 A.2d 11, 13

(Pa. 1973).

                                                  4
        Further, the evidence does not support defendant's claim of ilmocence. Detectives James

 Pitts and Frank Mullen testified at the evidentiary hearing that defendant had never asserted his

 innocence prior to filing his motion. N.T., 8/1/2016, at 56-57, 59; Net, 8/25/2016, at 21-22. Thus,

 defendant's claim of innocence is not a fair and just reason for withdrawal of his guilty plea.

        Second, defendant claims that he did not knowingly, intelligently and voluntarily tender

his guilty plea. This claim is plainly contradicted by the sworn testimony defendant gave at the

time he entered the guilty plea. Defendant was given both an oral and a written colloquy, after

which this court found his guilty plea was entered into knowingly, intelligently and voluntarily.

Further, defendant acknowledged his guilt under oath in open court. N.T., 4/26/2016, at 37.

Defendants are bound by statements made during a plea colloquy, and may not successfully assert

claims that contradict such statements. Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. Super.

1996); Commonwealth     v.   Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002). Thus, this claim is

also baseless and will not support a motion to withdraw the guilty plea.

        There is no requirement to address the issue of prejudice to the Commonwealth, where as

here, there is no fair and just reason for withdrawal of the guilty plea. Carrasquillo, 115 A.3d at

1293 n.9. However, the Commonwealth would be substantially prejudiced by the withdrawal            of

the guilty plea.   Defendant has not only secured a preview of the Commonwealth's evidence

against him, but more importantly, he has caused the dismissal of a jury he did not like. Even

where there is a fair and just reason for withdrawal, it should still not be granted if it would

substantially prejudice the Commonwealth. Commonwealth          v.   Prendes, 97 A.2d 337, 352 (Pa.

Super. 2014). Prejudice only requires that the Commonwealth show that it would be in a worse

position than it would have been had trial taken places as scheduled due to events occurring after

the plea. Id. The timing of defendant's motion meant that the jury selected would not hear the



                                                 5
case. This places the Commonwealth in a worse position than it would have been had the trial

taken place as scheduled.



       Accordingly, for the foregoing reasons, the denial of defendant's motion to withdraw his

guilty plea should be AFFIRMED.



                                                          BY THE COURT:




                                                     SANDY L.V. BYRD             J.




                                             6