J-A28042-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RODNEY WILLIAM GARY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2635 EDA 2021

Appeal from the Judgment of Sentence Entered August 13, 2021

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0001201-2018

BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED OCTOBER 05, 2023

Rodney William Gary (“Gary”) appeals from the judgment of sentence 

imposed after he pleaded nolo contendere to aggravated assault by vehicle 

while driving under the influence (“DUI”), DUI, possession of a controlled 

substance, and related offenses.1 Gary’s counsel (“present counsel”) has filed 

a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and petitioned to 

withdraw. We affirm and grant present counsel’s petition. 

We summarize the factual history of this appeal from the affidavit of 

probable cause, which the parties incorporated into the record of Gary’s nolo 

contendere pleas. See Affidavit of Probable Cause, 12/30/17, at 1; see also

N.T., 10/29/19, at 15-16 (memorializing the parties’ stipulations to the 

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1 See 75 Pa.C.S.A. §§ 3735.1(a), 3802(d)(1)(i); 35 P.S. § 780-113(a)(16); 

see also 75 Pa.C.S.A. §§ 3732.1(a), 3742(a), 3742.1(a), 3736(a), 3714(c), 

3745(a), 3361, 3744.
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affidavit of probable cause, the results of all chemical testing, and Gary’s 

driving history as stating the factual bases for Gary’s pleas). In the morning 

of December 30, 2017, Upper Darby Police Officer James Friel received a 

dispatch about a vehicle striking a pedestrian and was among the officers to 

respond. When Officer Friel arrived at the accident scene, he observed a man 

on the ground with open wounds and possible broken bones. One witness 

reported that the driver had struck two stop signs and then hit the pedestrian, 

after which the driver stopped, briefly got out of his vehicle, and then drove 

away from the scene. The witness identified the vehicle as a white Dodge 

Durango and gave officers its license plate number. The witness described 

the driver as a Black man. A second witness stated that he was walking 

toward the accident scene when he heard people yelling to stop a vehicle, and 

he took pictures of the driver and the vehicle’s license plate. See Affidavit of 

Probable Cause, 12/30/17, at 1. 

Officer Friel patrolled the area and later found the Dodge Durango 

double-parked by a building. He saw a man, later identified as Gary, in a 

green jacket walking away from the vehicle. Upon seeing the officer, Gary 

immediately went into the building. Officer Friel and another officer entered 

the building and found Gary. The officer brought Gary outside where one of 

the witnesses from the accident scene identified him. A woman told police 

that she saw Gary discard a pink bottle inside the building. An officer returned 

to the building and recovered a bottle containing six pills, which later chemical 

testing identified as alprazolam (“Xanax”). Police investigated the Dodge 
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Durango and noticed the smell of burnt marijuana inside the vehicle. Officers 

contacted the Durango’s registered owner, who told them she had doubleparked the vehicle to go to an appointment while Gary remained in the car. 

Police took Gary into custody, and he consented to a blood test, which 

indicated Gary had marijuana metabolites in his system. See id.; see also

N.T., 6/22/21, at 10. 

The Commonwealth charged Gary with numerous offenses related to the 

hitting the pedestrian while DUI and possessing Xanax.2In October 2019,

Gary, who was represented by counsel at the time (“plea counsel”), entered 

nolo contendere pleas. The trial court accepted Gary’s pleas and scheduled 

sentencing for December 2019. Thereafter, the court granted numerous 

requests by plea counsel to continue sentencing, or status hearings, until 

February, April, and then December 2020, and then again into January and 

March 2021.3 

In March 2021, plea counsel filed a motion to withdraw from 

representation averring Gary wanted new counsel due to disagreements with 

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2 Gary committed the offenses in the present case while on bail in a separate 

case listed at trial docket at 7529 of 2017 (“the separate case”). We address 

Gary’s appeal concerning the separate case at J-A28041-22.

3 We note the COVID-19 pandemic likely delayed the scheduling of a 

sentencing hearing. However, most of the defense’s continuance request

forms did not state the reasons for the requests. Two used general terms 

such as “negotiations” or “open matters.” Applications for Continuances, 

dated 2/7/20 and 1/29/21. We add that the Commonwealth filed to a third 

case against Gary listed at 1511 of 2021, which involved a murder charge. 

See N.T., 6/22/21, at 19. 
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plea counsel’s representation and strategy. See Motion to Withdraw as 

Counsel, 3/5/21, at 1. The court granted plea counsel’s motion to withdraw 

and appointed present counsel in March 2021. 

In May 2021, nearly nineteen months after Gary pleaded nolo 

contendere, present counsel filed a motion to withdraw Gary’s pleas. Present 

counsel asserted that Gary denied driving the vehicle at the time it struck the 

pedestrian, the eyewitness identifications were unreliable, and the

Commonwealth could not prove that Gary possessed the pill bottle found 

inside of the building. See Motion to Withdraw Nolo Contendere Plea, 

5/27/21, at 2 (unnumbered). The trial court held a hearing at which present 

counsel initially argued that Gary only intended to withdraw his nolo 

contendere plea to the one count of aggravated assault by vehicle while DUI. 

See N.T., 6/22/21, at 11. Present counsel later clarified that Gary intended 

to withdraw pleas on all counts as stated in his written motion. See id. at 15. 

Gary did not testify at the hearing. See id. at 16. The court denied Gary’s 

motion to withdraw his nolo contendere pleas, and, on August 13, 2021,

sentenced Gary to an aggregate term of four to eight years of imprisonment. 

Gary timely filed a post-sentence motion, which the court denied. 

Gary timely appealed, and present counsel filed a Pa.R.A.P. 1925(c)(4) 

statement of intent to file an Anders brief. The court determined that no 

further explanation of Gary’s conviction and sentence was necessary and did 

not prepare a Rule 1925(a) opinion. Present counsel then filed a petition to 

withdraw and an Anders brief in this Court. This Court denied present 
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counsel’s petition to withdraw. See Commonwealth v. Gary, 296 A.3d 622, 

2023 WL 2566447 (Pa. Super. 2023) (unpublished memorandum at *4). We

concluded that the absence of a trial court opinion impeded proper appellate 

review. See id. at *3-4. We directed the trial court to prepare a supplemental 

Rule 1925(a) opinion and permitted present counsel the opportunity to file an 

advocate’s brief or a new petition to withdraw and an Anders brief. See id. 

at *4. 

Following our remand, the trial court issued a supplemental Rule 

1925(a) opinion concluding that Gary’s bare assertion of innocence did not 

merit relief. Present counsel has filed a new petition to withdraw and an 

Anders brief. Gary has not responded pro se or with new counsel. 

When presented with an Anders brief, this Court may not review the 

merits of the underlying issues without first passing on the request to 

withdraw. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 

2010). Pursuant to Anders, when counsel believes an appeal is frivolous and 

wishes to withdraw from representation, he must do the following:

(1) petition the court for leave to withdraw stating that after 

making a conscientious examination of the record, counsel has 

determined the appeal would be frivolous; (2) file a brief referring 

to any issues that might arguably support the appeal, but which 

does not resemble a no-merit letter; and (3) furnish a copy of the 

brief to the defendant and advise him of his right to retain new 

counsel, proceed pro se, or raise any additional points he deems 

worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006) 

(internal citation omitted). In Santiago, our Supreme Court addressed the 
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second requirement of Anders, i.e., the contents of an Anders brief, and 

required that the brief:

(1) provide a summary of the procedural history and facts, with 

citations to the record; (2) refer to anything in the record that 

counsel believes arguably supports the appeal; (3) set forth 

counsel’s conclusion that the appeal is frivolous; and (4) state 

counsel’s reasons for concluding that the appeal is frivolous. 

Counsel should articulate the relevant facts of record, controlling 

case law, and/or statutes on point that have led to the conclusion 

that the appeal is frivolous.

Santiago, 978 A.2d at 361. “Once counsel has satisfied the [Anders] 

requirements, it is then this Court's duty to conduct its own review of the trial 

court's proceedings and render an independent judgment as to whether the 

appeal is, in fact, wholly frivolous.” Edwards, 906 A.2d at 1228 (citation 

omitted).

Here, present counsel avers in his new petition to withdraw that he 

conducted a thorough and conscientious review of the record and applicable 

case law, and thereafter determined that there are no meritorious grounds to 

support Gary’s appeal. Present counsel further avers that he mailed Gary

copies of the petition and the new Anders brief, as well as correspondence 

explaining Gary’s rights to retain private counsel or proceed pro se and raise 

any additional arguments he believes are meritorious. Present 

counsel’s Anders brief includes a summary of the facts and procedural history 

of the case, a list of issues that could arguably support Gary’s appeal, and an

analysis of why the issues lack merit. We conclude present counsel has 

substantially complied with the technical requirements of the Anders
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procedure.4 Accordingly, we will conduct an independent review to determine 

whether Gary’s appeal is wholly frivolous.

Present counsel identifies the following issue for review:

Whether [trial court] erred as a matter of law and abused its 

discretion, in denying [Gary’s motion to withdraw] his nolo 

contendere plea, which was filed by [Gary] prior to sentencing.

Anders Brief at 2. 

The following principles govern our review. The right to withdraw a 

guilty or nolo contendere plea is not absolute. See Commonwealth v. 

Carrasquillo, 115 A.3d 1284, 1291 (Pa. 2015); see also Commonwealth 

v. Norton, 201 A.3d 112, 114 & n.1 (Pa. 2019) (noting that the same 

standards apply to pre-sentence motions to withdraw a guilty plea or a nolo 

contendere plea). The trial court must construe a pre-sentence motion to 

withdraw a plea “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.” See 

Carrasquillo, 115 A.3d at 1292 (internal citation omitted). The trial court 

may exercise its discretion when considering whether an assertion of 

innocence constitutes a fair and just reason for a pre-sentence withdrawal of 

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4

In our prior decision, this Court noted that present counsel relied extensively 

on notes of testimony from a preliminary hearing, but did not include the 

preliminary hearing transcripts in the certified record. See Gary, 2023 WL 

2566447 at *4 n.2. Present counsel again relies on preliminary hearing 

testimony but failed to ensure the transcript of that proceeding. Upon our 

further review, we discern no need to refer to the preliminary hearing 

transcript, which was not made part of the plea hearing records. Therefore, 

present counsel’s failure to include this transcript is not a substantive defect. 
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a plea. See Norton, 201 A.3d at 120. A defendant’s bare assertion of 

innocence will not establish a fair and just reason to withdraw a plea per se. 

See id. The trial court may consider the credibility or plausibility of a 

defendant’s assertion of innocence when assessing whether the defendant has 

offered a colorable claim that the withdrawal of the plea would promote 

fairness and justice. See id. at 120-21. 

An appellate court reviews the trial court’s decision for an abuse of 

discretion. Thus, 

[w]hen a trial court comes to a conclusion through the exercise of 

its discretion, there is a heavy burden on the appellant to show 

that this discretion has been abused. An appellant cannot meet 

this burden by simply persuading an appellate court that it may 

have reached a different conclusion than that reached by the trial 

court; rather, to overcome this heavy burden, the appellant must 

demonstrate that the trial court actually abused its discretionary 

power. An abuse of discretion will not be found based on a mere 

error of judgment, but rather exists where the trial court has 

reached a conclusion which overrides or misapplies the law, or 

where the judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias or ill-will. Absent an abuse of 

that discretion, an appellate court should not disturb a trial court's 

ruling. 

Id. at 120 (internal citations, quotations, and brackets omitted). 

In his new Anders brief, present counsel asserts that this appeal is 

frivolous because Gary “does not have a colorable or plausible defense” and 

therefore could not establish a fair and just reason to withdraw his pleas 

before sentencing. Anders Brief at 15. In its Rule 1925(a) opinion, the trial 
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court determined Gary offer “nothing more than a bare assertion of 

innocence.” Trial Court Opinion, 3/24/23, at 3 (unnumbered).5

Following our independent review, we discern no record or legal support 

for a challenge to the trial court’s determination that Gary’s bare assertion of 

innocence did not state a fair and just reason to permit the pre-sentence 

withdrawal of his nolo contendere pleas. As noted by the trial court, Gary’s 

assertion of innocence consisted solely of representations by present counsel

in the motion to withdraw Gary’s nolo contendere pleas and during arguments 

at the hearing. We acknowledge that a defendant need not testify to state a 

fair and just reason to withdraw a plea, see Commonwealth v. Garcia, 280 

A.3d 1019, 1022, 1026 (Pa. Super. 2022), appeal denied, 293 A.3d 566 (Pa. 

2023); nevertheless, it remains in the discretion of the trial court to consider 

the plausibility and credibility of a defendant’s assertion of innocence, see 

Norton, 201 A.3d at 121.

Our review shows that Gary asserted his innocence based on claims he 

was not driving at the time of the accident, there were no reliable 

identifications that he was the driver, and the Commonwealth could not prove 

the bottle he was seen carrying into the building was the same bottle of pills 

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5 We note that the trial court wrote that it “found [Gary] credible at the 

October 29, 2019 hearing” on the motion to withdraw. See Trial Court 

Opinion, 3/24/23 at 3 (unnumbered). Because Gary did not testify at the 

hearing and considering the trial court’s conclusion that Gary offered only a 

bare assertion of innocence, the court’s reference to “credible” was an 

apparent typographical error meant to read “incredible.” 
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police found inside the building. See Motion to Withdraw Nolo Contendere

Plea, 5/27/21, at 2 (unnumbered); N.T., 6/22/21, at 15. These assertions of 

innocence simply ignore the ample evidence set forth in the affidavit of 

probable cause. As made clear in the affidavit of probable cause, at least one 

witness from the accident scene positively identified Gary as the driver who 

struck the pedestrian, and another witness reported that she saw Gary discard 

a pink bottle behind a potted plant in the building, a bottle the police 

recovered. See Affidavit of Probable Cause, 12/30/17, at 1. Gary cited no 

new evidence or legal theory in support of his assertion of innocence. 

Further, as noted by the trial court, Gary waited nearly nineteen months 

after pleading nolo contendere before seeking to withdraw his pleas. See Trial 

Court Opinion, 3/24/23, at 2 (unnumbered). Although the COVID-19 

pandemic may have contributed to this delay, a review of the record 

establishes that Gary, or plea counsel, requested five continuances of 

sentencing or status hearings. Neither Gary nor plea counsel offered any

reasons for the delays on the record, and neither Gary nor present counsel 

attempted to explain the reasons for the continuances. See Motion to 

Withdraw Nolo Contendere Plea, 5/27/21, at 2 (unnumbered); N.T., 6/22/21, 

at 15.

Based on the foregoing record, we conclude that the facts of this appeal 

are indistinguishable from our Supreme Court’s decision in Norton, which 

affirmed the trial court’s rejection of a claim of innocence. See Norton, 201 

A.3d at 122-23. In that case, the Court observed that four months after 
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pleading nolo contendere, Norton asserted he was innocent, could not live 

with himself for pleading, and wanted to test the Commonwealth’s evidence. 

See id. at 121. The Court found none of these reasons compelling, and noted 

in relevant part, that Norton’s “belated wish for a trial fails to bolster his claim 

of innocence, particularly in light of the fact that any vulnerability in the 

Commonwealth's evidence . . . was well known to [him] prior to him entering 

his plea.” See id. Additionally, the Court found no further basis to disturb 

the trial court’s ruling where the trial court had personally observed Norton, 

was intimately familiar with the case and demonstrated a studied 

understanding of the law regarding a pre-sentence withdrawal of a plea, and 

properly “factored into its exercise of discretion [Norton]’s knowledge of his 

available defenses when he pleaded and then inexplicably waited four months 

to file his motion to withdraw his plea.” See id. at 122.

Like the Court in Norton, we discern no basis to disturb the trial court’s 

conclusion that Gary offered only a bare assertion of innocence. Even had

Gary more expressly alleged he was not driving at the time of the accident, 

his assertions of innocence amount to little more than a request to test the 

Commonwealth’s evidence at trial. Notably, the Norton Court referred to 

disapprovingly to a four-month delay between Norton’s plea and his motion to 

withdraw. Here, Gary waited nearly nineteen months and provided no 

explanation for this delay. Thus, in light of Norton, we conclude that the trial 

court did not abuse its discretion when denying Gary’s pre-sentence motion 

to withdraw his nolo contendere plea. See Norton, 201 A.3d at 121-23.
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Accordingly, our independent review confirms that this appeal is 

frivolous and finding no other issues of arguable merit preserved in this 

appeal, we affirm the judgment of sentence and grant present counsel’s 

petition to withdraw from representation. 

Judgment of sentence affirmed. Petition to withdraw granted. 

Date: 10/5/2023