Com. v. Davis, R.

J-S34024-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT DAVIS :
:
Appellant : No. 2096 MDA 2019
Appeal from the Judgment of Sentence Entered December 4, 2019
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0001379-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 16, 2020
Appellant, Robert Davis, appeals from the judgment of sentence of one
to five years’ incarceration, imposed after he pled nolo contendere to
endangering the welfare of children, indecent assault of a person less than 13
years of age, and criminal attempt to commit indecent assault. Appellant
challenges the trial court’s denial of his pre-sentence motion to withdraw his
plea. After careful review, we affirm.
The trial court summarized the facts and pertinent procedural history of
Appellant’s case, as follows:
The victim, A.F., age 12, reported to her mother and subsequently
to [Children’s Resource Center (CRC)] that [Appellant] entered
her bedroom on July … 11, 2018, at around 4 a.m.[,] and was
lying next to her and touch[ing] her thigh and feet. The victim
further indicated that the following night[,] she woke up to
[Appellant] pulling on her underwear strap. [The v]ictim observed
[Appellant] running out of her bedroom. Upon review of the
documents provided by CRC, on October 9, 2018, according to the
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Bill of Information, [Appellant] was charged with [e]ndangering
[w]elfare of [c]hildren, [i]ndecent [a]ssault of a [p]erson less than
13 years of [a]ge[,] and [c]riminal [a]ttempt. On August 31,
2018, due to a conflict of interest[] by the Public Defender’s Office,
Joshua Harshberger[,] Esq.[,] was appointed to represent
[Appellant].
On January 24, 2019, [Appellant], in the presence of …
[A]ttorney … Harshberger, … entered a negotiated [n]olo
[c]ontendere [p]lea on all three charges. At sentencing on July
31, 2019, [Appellant] informed the [c]ourt that he wished to
withdraw his plea and proceed to trial on the matter.
Trial Court Opinion (TCO), 2/21/20, at 3-4.
The court continued Appellant’s sentencing proceeding to August 14,
2019, thereby providing Appellant time to file a written motion to withdraw
his plea. Appellant filed that motion on August 12, 2019. Therein, he alleged
that he wished to withdraw his plea because he had received “information that
the victim in this matter [was] recanting the accusation.” Motion to Withdraw
Plea, 8/12/19, at 2 (unnumbered). Appellant further explained that “in July
of 2019[,]” defense counsel, Attorney Harshberger, had received an undated
letter written by the victim in which she “recant[ed] the allegations [she]
testified to at the preliminary hearing on September 6, 2018[,] and [the]
allegations [she] reported to the county detectives [on] which the criminal
information relies….” Id. Curiously, Attorney Harshberger did not attach the
victim’s letter to Appellant’s motion to withdraw his plea.
On October 2, 2019, the court conducted a hearing on Appellant’s
motion. There, Attorney Harshberger reiterated that he had received a letter
from the victim recanting her allegations against Appellant. Once again,
however, counsel failed to present the letter to the court; he did not enter it
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into evidence, or call the victim to testify about her recantation. For its part,
the Commonwealth conceded that the victim wrote the recantation letter, but
it argued that certain statements in the letter indicated the victim was being
“fed some of this information.” N.T. Hearing, 10/2/19, at 9, 10. The
Commonwealth also explained that the victim’s mother was in a romantic
relationship with Appellant. At the time the victim wrote the letter, she was
living with her mother again, and Appellant was free on bail. Id. at 10, 11.
Additionally, the Commonwealth stated that the victim was “not recanting
being touched…, but she [is] now saying that it was some … teenage boy who
came into her house in the middle of the night and did these things and it was
[not Appellant].” Id. at 11.
After hearing the parties’ arguments, the court denied Appellant’s
motion to withdraw his plea. The court reasoned that the victim’s recantation
was not credible, given its timing and the circumstances surrounding it. Id.
at 12. The court also accepted the Commonwealth’s argument that it would
be prejudiced by the withdrawal of Appellant’s plea because there was a
“substantial timeframe” between when Appellant entered his plea in January
of 2019 until when he sought to withdraw it in August of 2019. Id. at 9, 12.
Following the court’s denial of Appellant’s motion, Attorney Harshberger
sought leave to withdraw from representing Appellant, claiming that Appellant
now wished to withdraw his plea on the basis that Attorney Harshberger had
acted ineffectively in representing him. The court conducted a hearing on
counsel’s motion to withdraw on October 30, 2019. At the close thereof, the
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court entered an order granting Attorney Harshberger’s petition to withdraw
and scheduling Appellant’s sentencing for December 4, 2019. On that date,
the court imposed the sentence set forth supra.
Appellant filed a timely, pro se notice of appeal, and he complied with
the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court thereafter filed a Rule 1925(a) opinion.
On January 23, 2020, this Court remanded Appellant’s case for the trial court
to conduct a colloquy pursuant to Commonwealth v. Grazier, 713 A.2d 81(Pa. 1998), to discern if Appellant was knowingly, intelligently, and voluntarily
waiving his right to counsel on appeal. The court conducted that colloquy and
ultimately appointed counsel for Appellant.
Herein, Appellant states one issue for our review: “Should the request
of … Appellant to withdraw his nolo contendere plea [have] been granted given
the fact that the alleged victim in the case wrote a letter … recanting the
allegations against … Appellant and the date of that letter was after he entered
the plea with the [c]ourt?” Appellant’s Brief at 20.
Preliminarily, we observe that we review a trial court’s ruling on a pre-
sentence motion to withdraw a guilty plea for an abuse of discretion. See
Commonwealth v. Islas, 156 A.3d 1185, 1187 (Pa. Super. 2017).
Additionally, our Supreme Court has explained:
[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
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permitted, unless the prosecution has been “substantially
prejudiced.”
Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973) (internal citations
and some internal quotations omitted).
In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), the
Court provided additional guidance as to the proper exercise of a trial
court’s discretion in ruling on a pre-sentence motion to withdraw a plea.
While reaffirming the “liberal allowance” standard, the Court
acknowledged that its previous application of that standard had “lent
the [false] impression that [the] Court had required acceptance of a
bare assertion of innocence as a fair-and-just-reason” for withdrawal.
Id. at 1292. The Carrasquillo Court clarified that “a bare assertion of
innocence is not, in and of itself, a sufficient reason to require a court
to grant” a pre-sentence motion to withdraw. Id. at 1285. Rather,
a defendant’s innocence claim must be at least plausible to
demonstrate, in and of itself, a fair and just reason for
pre[-]sentence 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.
The policy of liberality remains extant but has its limits,
consistent with the affordance of a degree of discretion to
the common pleas courts.
Id. at 1292. Thus, the Carrasquillo Court established that a trial
court possesses discretion to assess the plausibility of a defendant’s
claim of innocence. In doing so, “both the timing and the nature of
the innocence claim, along with the relationship of that claim to the
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strength of the government’s evidence, are relevant.” Islas, 156 A.3d
at 1191. More recently, our Supreme Court further elucidated that,
[c]onsistent with the well-established standards governing trial
court discretion, it is important that appellate courts honor
trial courts’ discretion in these matters, as trial courts are
in the unique position to assess the credibility of claims of
innocence and measure, under the circumstances, whether
defendants have made sincere and colorable claims that
permitting withdrawal of their pleas would promote fairness
and justice.
Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019).
Here, the trial court did not find that fairness and justice would be
promoted by permitting Appellant to withdraw his plea based on the victim’s
purported recantation. Again, Appellant did not attach the victim’s letter of
recantation to his petition to withdraw his plea, or make any attempt to enter
the letter into evidence at the hearing on his motion. He also did not seek to
call the victim to the stand. Instead, Appellant and the Commonwealth simply
described the contents of the victim’s letter to the court, and explained the
circumstances and timing of its drafting. The Commonwealth stressed that
the victim’s undated letter was ostensibly written when Appellant was free on
bail and the victim was living with her mother, who was romantically involved
with Appellant. The Commonwealth suggested that Appellant and/or the
victim’s mother had coached the victim in writing the letter. The
Commonwealth also noted that the victim was not recanting her allegation
that she had been abused, but was claiming that the perpetrator of the abuse
was not Appellant, but a teenage boy who had snuck into her room in the
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middle of the night. Appellant made no objection to the Commonwealth’s
description of the content or context of the victim’s recantation letter.
Ultimately, the court found the timing and circumstances of the victim’s
letter to be suspicious, and her recantation incredible. We discern no abuse
of discretion in that decision. While on appeal, Appellant discusses the
contents of the victim’s letter and attaches a copy to his brief, the letter was
never entered into evidence or filed in the certified record; therefore, we
cannot consider it on appeal. See Bennyhoff v. Pappert, 790 A.2d 313, 318
(Pa. Super. 2001) (stating “[i]t is black letter law in this jurisdiction that an
appellate court cannot consider anything which is not part of the record in
[the] case”).
Additionally, we reject Appellant’s suggestion that the court erred by
making a credibility determination regarding the victim’s recantation when her
letter was not admitted into evidence, and the victim did not testify at the
hearing. Appellant does not cite to where in the record he attempted to admit
this (or any other) evidence for the court’s consideration. It was Appellant’s
burden to present evidence in order to make “a colorable demonstration,
under the circumstances, such that permitting withdrawal of the plea
would promote fairness and justice.” Carrasquillo, 115 A.3d at 1292.
Clearly, he failed to do so. Therefore, he cannot now complain that the court
did not have a sufficient record before it to make a credibility determination
regarding the victim’s recantation.
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In sum, the court found the victim’s recantation incredible based on the
Commonwealth’s discussion of the context and content of that recantation.
Appellant did not object to the Commonwealth’s characterization of the letter
and the circumstances surrounding it, or present any evidence to support his
request to withdraw his plea. Thus, we conclude that the record supports the
court’s determination that Appellant did not make a colorable claim of
innocence to justify the pre-sentence withdrawal of his plea.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/16/2020
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