Com. v. Rivera, E. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EDWARD LEONARD RIVERA JR. :
:
Appellant : No. 2050 EDA 2019
Appeal from the Judgment of Sentence June 21, 2019
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000917-2015
BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 08, 2020
Edward Leonard Rivera Jr. (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to receiving stolen property.1 Upon
review, we affirm.
Appellant raises one issue on appeal:
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW
AND/OR ABUSE OF DISCRETION BY DENYING APPELLANT
EDWARD RIVERA, JR.’S PRE-SENTENCE MOTION TO WITHDRAW
HIS GUILTY PLEA, BY FINDING PREJUDICE TO THE
COMMONWEALTH DUE TO THE DEATH OF AN UNINVOLVED
PURPORTED WITNESS WHERE THE DECEASED FAILED TO MAKE
A WRITTEN STATEMENT, REPORT THE CRIME, OR OTHERWISE
AVAIL HIMSELF TO AID THE COMMONWEALTH’S
INVESTIGATION?
Appellant’s Brief at 9.
The trial court summarized the relevant facts and procedure as follows:
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1 18 Pa.C.S.A. § 3925(a).
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On or about August 16, 2016, [Appellant] entered a guilty
plea to one count of Receiving Stolen Property. . . . On June 30,
2017, subsequent to the withdrawal of his then-counsel,
[Appellant’s] current counsel, Joseph V. Sebelin, Jr. Esq., filed a
Motion to Withdraw Guilty Plea which this Court denied upon
[Appellant’s] failure to appear at a scheduled August 28, 2017
hearing thereupon.
Following a period of time in which [Appellant] had been
incarcerated in Schuylkill County, this [c]ourt scheduled
[Appellant’s] sentencing for May 18, 2018. [Appellant] filed his
Second Motion to Withdraw Guilty Plea on May 17, 2018.
This [c]ourt presided over a hearing on [Appellant’s] Second
Motion to Withdraw Guilty Plea on November 6, 2018. At the
November 6, 2018 [hearing], [Appellant] maintained his
innocence as to each pending charge. In addition to presenting
the testimony of Amy Burns, Felicia Urbanski, and Officer Joshua
Tom, the Commonwealth contended that it had been prejudiced
by the death of Brian Brossman (“Mr. Brossman”), an individual
contended by the Commonwealth to be a material witness and
who died on November 12, 2016, approximately three months
after [Appellant’s] August 16, 2016 guilty plea.
This [c]ourt denied [Appellant’s] Second Motion to Withdraw
Guilty Plea through its June 11, 2019 Order of Court.
Subsequently, this [c]ourt sentenced [Appellant] on June 21,
2019; [Appellant] thereafter, on July 15, 2019, filed this timely
appeal. This [c]ourt then directed [Appellant] to file a concise
statement of matters complained of on appeal by Order of Court
dated July 16, 2019 and filed on July 17, 2019. On July 29, 2019,
[Appellant] filed his “1925(b) Statement of Matters Complained of
on Appeal” (“[Appellant’s] 1925(b) Statement of Matters
Complained of on Appeal”).
Trial Court Opinion, 9/13/19, at 2-3.
In reviewing Appellant’s claim, we begin with a summary of the
applicable law:
“We review a trial court’s ruling on a [pre]sentence motion to
withdraw a guilty plea for an abuse of discretion.”
Commonwealth v. Islas, 156 A.3d 1185, 1187 (Pa. Super.
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2017) (citation omitted). Pennsylvania Rule of Criminal Procedure
591(A) provides 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).
“Although there is no absolute right to withdraw a guilty
plea, properly received by the trial court, it is clear that a request
made before sentencing should be liberally allowed.”
Commonwealth v. Kpou, 153 A.3d 1020, 1022 (Pa. Super.
2016) (cleaned up). “In determining whether to grant a
presentence motion for withdrawal of a guilty plea, the test to be
applied by the trial courts is fairness and justice.”
Commonwealth v. Elia, 83 A.3d 254, 262 (Pa. Super. 2013)
(cleaned up). Therefore, if the defendant provides a fair and just
reason for wishing to withdraw his or her plea, the trial court
should grant it unless it would substantially prejudice the
Commonwealth. Commonwealth v. Carrasquillo, 631 Pa. 692,
115 A.3d 1284, 1287 (2015) (citation omitted).
Commonwealth v. Williams, 198 A.3d 1181, 1184 (Pa. Super. 2018).
Appellant agrees that the trial court “properly found that Appellant
raised a ‘fair and just’ defense.” Appellant’s Brief at 14, 20.2 See also Trial
Court Opinion, 9/13/19, at 7 (finding that Appellant provided the court “with
more than just a bare assertion of innocence.”). However, Appellant
maintains that the trial court erred in finding that the Commonwealth would
be prejudiced by the withdrawal of Appellant’s plea because of the
____________________________________________
2 Appellant maintains he is innocent because the victim “gave the television
to Appellant as collateral for an unpaid obligation.” Appellant’s Brief at 10,
12.
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unavailability of “a material Commonwealth witness,” Brian Brossman, who
died three months after Appellant entered his plea.3 Appellant asserts “the
Commonwealth will not be prejudiced by either [Appellant’s] withdrawal of his
guilty plea or by having to go to trial without a plea or by having to go to trial
without a witness who passed away.” See Trial Court Opinion, 9/13/19, at 4-
5. Appellant claims the Commonwealth failed to demonstrate “substantial
prejudice” as required by Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa.
1973) and Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), and
avers the Commonwealth “would be in no worse position for this case due to
the death of [the witness].” Appellant’s Brief at 15. Appellant specifically
argues:
Appellant disputes that Brossman’s death constitutes a
“substantial prejudice” to the Commonwealth. Appellant
Brossman was not a key “witness” or otherwise willing to aid the
Commonwealth in the case against Appellant. Mr. Brossman was
not a witness to the alleged removal of items as he was not at the
house. He did not call the police in advance of the alleged
burglary. Throughout the investigation, Mr. Brossman did not
avail himself to aid the prosecution. He made no written
statement to the police. In fact, he avoided further interaction
with the police during their investigation. There is simply no
evidence that he ever testified or gave a sworn statement on this
matter. In short, other than an alleged oral statement, Brossman
was a virtual non-entity in this case.
Appellant’s Brief at 14.
In the alternative, Appellant argues:
____________________________________________
3It is undisputed that Brian Brossman was unavailable because he died on
November 12, 2016. See N.T., 11/6/18, at 16; Commonwealth Exhibit 2.
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Even if Mr. Brossman was the only witness that could substantiate
the conspiracy charge, Mr. Brossman had previously pleaded to a
crimen falsi offense (False Reports 18 Pa. C.S. 4906), and thus,
his word was questionable. His plea to a crimen falsi renders the
Commonwealth’s reliance upon his “statement” and “credible”
testimony are tenuous at best [sic]. There is simply no reason to
believe that he would have appeared to testify for the
Commonwealth, that he would have testified against the
Appellant, and that his testimony would have been reliable.
Appellant’s Brief at 15.
Contrary to both Appellant and the trial court, the Commonwealth
argues that Appellant did not meet the first prong of Carrasquillo and did not
raise a plausible defense of innocence. The Commonwealth states that even
if the court accepted Appellant’s explanation regarding the television, “it still
does not follow why other items from the household were taken.”
Commonwealth Brief at 12. With regard to the second prong, the
Commonwealth states that Mr. Brossman was a “material” and “independent”
witness, who would have testified to the necessary elements of the four crimes
with which Appellant was charged, and corroborate the testimony the victim,
Amy Burns. Id. at 9, 12-13. The Commonwealth asserts that it would be
substantially prejudiced by Mr. Brossman’s unavailability because although
Mr. Brossman is not the only Commonwealth witness, “the other witnesses
would not be as strong and compelling,” because “Mr. Brossman had nothing
to do with the theft.” Id. at 14.
Upon review, we discern no abuse of discretion in the trial court’s
determination that Appellant demonstrated a fair and just reason for the
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withdrawal of his plea. See Commonwealth v. Islas, 156 A.3d at 1292.
Noting the “policy of liberality” articulated in Carrasquillo, the trial court
concluded that Appellant provided the court with “more than just a bare
assertion of innocence.” Trial Court Opinion, 9/13/19, at 7. The trial court
referenced Appellant’s post-hearing memorandum in support of his motion to
withdraw plea, in which he reiterated that he did not steal the television, and
claimed that it was given to him by Ms. Burns. See Memorandum in Support
of Guilty Plea, 1/24/19, at 7. Appellant further stated that he:
has affirmed his innocence on multiple occasions – in his initial
statement to the [police] officer, in multiple statements to th[e]
honorable [trial] court, and lastly, in his testimony at the hearing
on his motion to withdraw his plea.
Id. at 8.
Upon review, and mindful that “the proper inquiry on consideration of
such a withdrawal motion is whether the accused has made some colorable
demonstration, under the circumstances,” we do not disturb the trial court’s
finding that Appellant demonstrated a fair and just reason in support of his
motion to withdraw guilty plea. See Commonwealth v. Carrasquillo, 115
A.3d at 1292. We therefore turn to the second consideration of whether the
Commonwealth would be substantially prejudiced by withdrawal of the plea.
Id. (citing Commonwealth v. Forbes, 299 A.2d 268,271 (Pa. 1973)).
Again, we are not persuaded that the trial court abused its discretion.
The trial court stated that it found the Commonwealth’s contentions of
prejudice to be “compelling and credible,” while Appellant’s claims regarding
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Mr. Brossman failed to “squarely address nor refute the Commonwealth’s
contentions.” Trial Court Opinion, 9/13/19, at 10.
The Commonwealth presented three witnesses at the hearing on
Appellant’s withdrawal motion. First, Lansford Police Detective Joshua Tom
testified that the victim, Amy Burns, told him that she met Appellant at Mr.
Brossman’s house. N.T., 11/6/19, at 19. Detective Tom confirmed Appellant’s
statement that he was “holding” Ms. Burns’ television as collateral. Id. at 23.
However, Detective Tom stated that Mr. Brossman told Detective Tom that
Appellant and two other individuals were at Mr. Brossman’s home “the day of
the burglary” and verbalized their “plan on burglarizing the victim’s home.”
Id. at 24. Detective Tom opined that Mr. Brossman was “a mutual party,
[but] didn’t really want much to be involved with it.” Id. at 25. He stated,
“[Brian Brossman] was the neutral party between Amy Burns and
[Appellant].” Id. (emphasis added). Detective Tom continued:
Brian [Brossman] stated that after the three, [Appellant],
[Felicia] Urbanski and [Charles] Grant came up with their plan,
they executed the plan, left the house, then came back to Brian’s
house and wanted him to hold some of the stuff. He told them he
wanted no part of it and told them to leave.
Id.
Detective Tom stated that Mr. Brossman “did not give a written
statement. This was all during a [verbal] interview.” Id. at 26. On cross-
examination, Detective Tom testified that he never offered Mr. Brossman the
opportunity to be recorded, and as to a written statement, Mr. Brossman “was
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not one for writing things down.” Id. at 49. The detective averred that Mr.
Brossman “just overheard them that they were planning on burglarizing the
house. That was [sic] his words.” Id. at 50. He repeated: “He told me that
they were all in the living room planning on breaking in and burglarizing Amy
Burns’ house.” Id. Defense counsel cross-examined Detective Tom as
follows:
Q. Okay. So is it safe to say that Mr. Brossman told you, he
doesn’t know what happened that morning one way or the other,
or that day at Amy Burns’ house, fair enough?
A. The only thing I can testify to is that he overheard them
planning on breaking into the house. They left and they returned
with a bunch of stuff asking to keep it at Brian’s house and he
said; no, you’ve got to leave.
Q. The stuff, the bunch of stuff, did he provide you an
inventory, much like Mr. Burns did?
A. No, he did not.
Q. He didn’t write anything down?
A. He didn’t write anything down. He didn’t want to know
nothing about it. They offered; can we keep this stuff here? And
he said; no, you’ve got to leave.
Q. Okay.
A. And they left. He didn’t want no part of their plan.
Q. But he wasn’t present one way or the other when the stuff
was taken from Amy Burns’ house?
A. No, not that I’m aware of. He did not say that.
Q. He tells you that he overheard their statement?
[COMMONWEALTH]: Asked and answered.
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[DEFENSE COUNSEL]: That’s what this witness said. I didn’t ask
– I asked him what he heard, but I want to get—
THE COURT: You just asked him.
[DEFENSE COUNSEL]: So he overhears it. Did he tell you how
far away he was standing when he overheard it?
A. No.
Q. Did he tell you that he was part of the conversation when
he overheard it?
A. Nope.
Q. So according – he didn’t tell you or give you any more details
other than he overheard them planning the burglary?
A. He said that they were sitting in the room and they were
talking about breaking in and burglarizing Amy Burns’ house.
N.T., 11/6/18, at 52-53.
Prior to calling the next witness, Felicia Urbanski, the Commonwealth
addressed the trial court:
I had anticipated having Felicia Urbanski here to testify similarly
to Mr. Brossman since she apparently was there. [But] in my
discussion with her, Ms. Urbanski will be testifying contrary to Mr.
Brossman.
The reason why I bring that up, Your Honor, is if she would
have been able to testify in accordance with Mr. Brossman,
then I would have been able to interchange her with Mr.
Brossman for trial. At this point in time, I have a witness who
will not be testifying in accordance with Mr. Brossman.
Id. at 66 (emphasis added).
As indicated by the Commonwealth, Ms. Urbanski’s testimony was
contrary to Detective Tom’s account of what Mr. Brossman said. Ms. Urbanski
testified:
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We were at Brian’s house that morning and Amy – it was almost
around afternoon time and she was supposed to get money from
her husband. So she was going to get money from her husband
to give [Appellant]. There would be no reason to burglarize her
house. She was gone for about an hour. [Appellant] left Brian’s
house. [Appellant] came back to Brian’s house with the TV in the
back of the car.
N.T., 11/6/18, at 73.
After Ms. Urbanski, the Commonwealth called Amy Burns, who testified
unequivocally that her home was burglarized. Although Ms. Burns admitted
to being “fronted” drugs from Appellant, she denied “any arrangements” with
Appellant to provide personal items as collateral. Id. at 79-93. For example,
Ms. Burns testified, “If I wanted to give [Appellant] the television for collateral,
I could have done it myself. I wouldn’t have told a stranger to go into my
home.” Id. at 89. She said she “never told [Appellant] to go into my home
without me being present.” Id. She added that she knew Felicia Urbanski,
and “Lansford is a small town. Everyone knows where my house is.” Id.
On this record — i.e., the testimony presented at the hearing on
Appellant’s motion to withdraw guilty plea — we discern no abuse of discretion
by the trial court in determining that the Commonwealth would be
substantially prejudiced by Appellant’s withdrawal of his plea. We have
explained that a defendant is:
not entitled to withdraw his plea if, at the time of the motion, such
withdrawal would have “substantially prejudiced” the
Commonwealth. . . .
***
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In assessing a claim of substantial prejudice, we focus on whether
there was a material change in circumstances between a
defendant’s guilty plea and his motion to withdraw. In other
words, the question before us is whether, at the time [the
defendant] moved to withdraw his plea, the prosecution would
have been substantially prejudiced by being required to try its
case.
Commonwealth v. Islas, 156 A.3d 1185, 1192-94 (Pa. Super. 2017)
(citations omitted and footnote).
Here, Appellant filed his motion to withdraw guilty plea on May 17, 2018,
after the Commonwealth’s witness, Mr. Brossman, had died. Thus, there was
a material change in circumstances. Citing Commonwealth v. Scher, 803
A.2d 1204 (Pa. 2002), Appellant states that “[t]he Pennsylvania Supreme
court has held that the death of a potential witness does not automatically
constitute prejudice.” Appellant’s Brief at 23. However, Scher does not
involve a guilty plea; rather, the defendant in Scher made a claim regarding
his due process rights relative to a 20-year delay in being charged with
murder. We are more persuaded by the cases Appellant cites which involve a
defendant’s desire to withdraw a pre-sentence plea. Appellant recognizes:
It is settled law that “prejudice,” in the withdrawal of a guilty plea
context, requires 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.
Commonwealth v. Kirsch, 930 A.2d 1282, 1286 (Pa. Super.
2007). See also Commonwealth v. Prendes, 97 A.3d 337, 353
(Pa. Super. 2014). 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.” Commonwealth
v. Kirsch, 930 A.2d 1282, 1286 (Pa. Super. 2007); appeal denied,
596 Pa. 727, 945 A.2d 168 (2008). When a guilty plea is
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withdrawn before sentencing, the withdrawal usually does not
substantially prejudice the Commonwealth if it simply places the
parties “back in the pretrial stage of proceedings.” Id.
Appellant’s Brief at 21-22.
Upon review, we find no error in the trial court’s determination that the
Commonwealth would be prejudiced by Mr. Brossman’s unavailability. We
agree with the Commonwealth that had the trial occurred as scheduled, Mr.
Brossman would be the “most strong and compelling witness,” given that he
was the most independent, could have testified to the elements of the crimes
with which Appellant was charged, and corroborated the testimony of Amy
Burns. See Commonwealth Brief at 13-14. To the extent Appellant argues
that Mr. Brossman lacked credibility because he pled guilty to a crimen falsi
offense, we note the trial court’s discretionary authority when such matters
arise at trial. See, e.g., Commonwealth v. Hoover, 107 A.3d 723 (Pa.
2014). In sum, the evidence supports the trial court’s finding that the
Commonwealth would be placed in a worse position, and therefore
substantially prejudiced, if Appellant was permitted to withdraw his plea.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/20
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