J-S71028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD LEONARD RIVERA JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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:

____________________________________________

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 

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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:

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3

It 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 crossexamination, 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