J-S46036-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LESLIE ELLIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 949 EDA 2017

Appeal from the Judgment of Sentence, April 29, 2016,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0010565-2014.

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 17, 2018

Leslie Ellis appeals the judgment of sentence imposed following his 

conviction for third degree murder and related offenses. He claims the trial 

court erred in denying his motion to withdraw his guilty plea. We affirm. 

On May 13, 2014, Ellis became involved in a physical altercation with 

Jonathan Perez and the victim, Craig Thomas. Perez’s parents intervened in 

the commotion and broke up the fight. Once the men were separated, Ellis 

drew a concealed revolver and fired four times in Thomas’s direction, striking 

Thomas once in the back. Ellis fled from the scene and was arrested a few 

days later. At the time of this incident, Ellis was ineligible to possess a firearm 

because of a prior conviction for intent with possession to deliver. Ellis was 

charged with Thomas’s murder and crimes, including possession of a firearm 

by a prohibited person. 
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Ellis waived his right to a jury trial on these charges. During the bench

trial that began on July 20, 2015, the Commonwealth proved, through 

stipulated testimony of a medical examiner, that Thomas died as a result of

the gunshot wound to his back. 

On July 21, 2015, the second day of trial, Ellis elected to terminate the 

proceedings by pleading guilty to one count each of third degree murder (18. 

Pa.C.S.A. § 2502), possession of a firearm by a prohibited person (18 

Pa.C.S.A. § 6105), and possessing an instrument of crime (18 Pa.C.S.A. § 

907). The court found Ellis accepted the guilty plea of his own free will. N.T., 

7/21/15, at 8-9. The court also found Ellis agreed to the substance of what 

happened on May 13, 2014, as presented by the prosecutor. Id. at 16-17, 

18. 

Prior to sentencing, Ellis filed pro se motions to withdraw his guilty plea 

and represent himself. On December 4, 2015, after a hearing pursuant to 

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the court granted 

defendant’s motion to proceed pro se. On December 10, 2015, after an 

evidentiary hearing, the Court denied Ellis’ motion to withdraw his guilty plea. 

At Ellis’ request, the court appointed counsel to represent Ellis for purposes of 

sentencing. 

At the sentencing hearing on April 29, 2016, the trial court imposed an 

aggregate sentence of twenty-two and a half to fifty years’ incarceration at 

the state prison. Trial Court Opinion, 6/23/17, at 1. 
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Ellis filed an untimely motion for reconsideration on May 11, 2016, which 

was denied on May 23, 2016. Then, on February 2, 2017, Ellis filed a PCRA 

petition, through his counsel, seeking reinstatement of his appellate rights. 

On March 1, 2017, the court granted Ellis’ PCRA petition and reinstated Ellis’ 

direct appeal rights. Trial Court Opinion, 6/23/17, at 1-2. Ellis then appealed 

from the judgment of sentence entered by the Court in April 2016. 

Ellis’ sole issue raised on appeal is: 

A. Whether the court erred in denying [Ellis’] motion to 

withdraw his guilty plea prior to sentencing and where 

the Commonwealth would not be prejudiced? 

Ellis’ Brief at 5. 

The standard of review we employ for challenges to a trial court’s denial 

of a motion to withdraw a guilty plea is well settled. The trial court’s decision 

to deny the motion will only be upset if the trial court committed an abuse of 

discretion. Commonwealth v. Elia, 83 A.3d 254, 261 (Pa. Super. 2013). 

Abuse of discretion must amount to more than an error in judgment and will 

not be found unless the trial court’s judgment was manifestly unreasonable, 

or was the result of partiality, bias, or ill-will. Commonwealth v. McNabb, 

819 A.2d 54, 55 (Pa. Super. 2003).

Generally speaking, Pennsylvania’s Rules of Criminal Procedure give the 

trial court discretion to allow a criminal defendant to withdraw a guilty plea 

and substitute a not guilty plea “[a]t any time before the imposition of 

sentence.” Pa.R.Crim.P. Rule 591(A). However, there is no absolute right to 
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withdraw a guilty plea. Commonwealth v. Carrasquillo, 115 A.3d 1284, 

1285 (Pa. 2015)

Ellis relies on Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973) as 

the standard the court must follow when considering the withdrawal of a guilty 

plea. In Forbes, our Supreme Court used a two-prong test and allowed a 

defendant to withdrawal a guilty plea before sentencing so long as there was 

a fair and just reason and the Commonwealth would not suffer substantial 

prejudice. Id. at 271.

Our Supreme Court narrowed the first prong of that test in 2015, in the 

companion cases of Carrasquillo, supra, and Commonwealth v. Hvizda, 

116 A.3d 1103 (Pa. 2015).1 In Carrasquillo, the court acknowledged that 

requiring any claim of innocence to serve as a basis for a pre-sentence 

withdrawal of a guilty plea was unsatisfactory because it did not allow the 

court to consider the underlying facts of the case. The court then concluded 

that “a bare assertion of innocence” was not, “in and of itself, a sufficient 

reason to require a court to grant a presentence request to withdraw a guilty 

plea.” Carrasquillo, 115 A.3d at 1285. Instead, the court held, a defendant 

must demonstrate that his claim of innocence is, at least, plausible under the 

facts of the case: 

[A] defendant’s innocence claim must be at least plausible 

to demonstrate, in and of itself, a fair and just reason for 

presentence withdrawal of a plea. More broadly, the proper 

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1 Neither of these cases addressed the second prong of the test, thus, the 

standard for that prong, announced in Forbes, remains intact. 
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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 (internal citations omitted). 

Here, the trial court concluded, that Ellis failed to meet both prongs of 

the two-prong test to withdraw his guilty plea: Ellis “failed to establish a fair 

and just reason for withdrawal, and the Commonwealth would have been 

substantially prejudiced had the motion been granted.” Trial Court Opinion, 

6/23/17, at 3. 

With respect to the first prong, we find the trial court did not abuse its 

discretion. In his motion to withdraw his guilty, Ellis simply made a bare 

assertion of innocence. He did not present any evidence to support that his 

claim of his innocence was plausible under the facts; he simply stated that he 

did not “pull the trigger.” N.T., 12/04/15, at 23. At the hearing on the motion, 

the Commonwealth presented a plethora of evidence which showed this was 

not a colorable claim. Mr. Peter Lim, the Assistant District Attorney, said that 

two individuals saw Ellis fire the gun, and these individuals had a clear view 

of Ellis at the time so there could be no mistaking his identity. N.T., 12/04/15, 

at 24. 

Mr. Michael Giampietro, Ellis’ public defender at the time the guilty plea 

was entered, also testified that Ellis initially wanted to claim that the shooting 

occurred in self-defense. As the trial court noted, this justification defense 

necessarily involved an admission that defendant did the killing, and squarely 
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contradicted Ellis’s claim in his motion that he was not the shooter. Trial Court 

Opinion, 6/23/17 at 4. 

 Giampietro testified that he told Ellis the claim of self-defense here was 

not workable; the victim was shot in the back from a distance too great for a 

self-defense claim to be successful. Once Giampietro informed Ellis that selfdefense would not be successful, Giampietro said Ellis then began claiming he 

was innocent and did not commit the shooting. N.T., 12/10/15, at 32-33. 

Additionally, Ellis gave an incriminating statement to police following the 

shooting, placing him at the scene in the location where Ellis said the shooter 

was positioned. N.T., 12/10/15, at 34. An additional witness for the 

Commonwealth also indicated that he saw Ellis running from the scene with 

his arm in such a way that he may have been carrying a firearm. N.T., 

12/10/15, at 34. 

The trial court found Giampietro to be completely credible. His 

testimony established that defendant was not coerced into pleading guilty and 

that his claim of innocence was completely implausible. Compare 

Commonwealth v. Islas, 156 A3d 1185 (Pa. Super. 2017) (allowing the 

withdrawal of a guilty plea where the defendant proffered a colorable or 

plausible claim of innocence). We find no abuse of discretion on the part of 

the trial court for denying Ellis’ motion to withdraw his guilty plea, when Ellis 

offered no plausible claim of innocence. 

Since Ellis did not meet the first prong of the two-part test for withdrawal 

of a guilty plea, we need not address the trial court’s decision with respect to 
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the second prong of the test, i.e. whether the withdrawal would result in 

substantial prejudice to the Commonwealth. However, we will briefly address 

this issue only to the extent the court relied on Commonwealth v. Whelan, 

392 A.2d 1363 (Pa. 1978) (plurality) cert. denied, Whelan v. 

Pennsylvania, 440 U.S. 926 (1979), to reach its conclusion that the 

Commonwealth would suffer prejudice if the withdrawal were allowed. 

In deciding this issue, the trial court observed, “the defendant pled 

guilty on the second day of his trial, after the Commonwealth had made an 

opening statement and begun the presentation of evidence.” Trial Court 

Opinion, 6/23/17 at 5. “Under these circumstances,” the trial court held, “the 

Commonwealth has been substantially prejudiced by defendant’s preview of 

its case.” Id. (citing Whelan, 392 A.2d at 1364).

We note that Whelan was a plurality decision and therefore did not 

provide a bright line test for substantial prejudice. We remind the trial court 

that plurality opinions, by definition, establish no binding precedent for future 

cases. See e.g., Commonwealth v. Bethea, 828 A.2d 1066, 1073 (Pa. 

2003); Hoy v. Angelone, 720 A.2d 745, 750 (Pa. 1998); see also Interest 

of O.A., 717 A.2d 490, 496 n. 4 (Pa. 1998) (Opinion Announcing Judgment 

of Court by Cappy, J.) (“While the ultimate order of a plurality opinion, i.e. an 

affirmance or reversal, is binding on the parties in that particular case, legal 

conclusions and/or reasoning employed by a plurality certainly do not 

constitute binding authority.”) A court may rely on a plurality decision as 
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persuasive authority. Here, it is not clear from the citation whether the trial 

court relied on Whelan as binding or persuasive authority. 

In Whelan, the defendant was charged with criminal homicide. After a 

week of jury trial, where the Commonwealth had placed its case in chief into 

evidence and Whelan and his co-defendant had placed their cases into 

evidence, Whelan pleaded guilty to the charge of being an accessory to 

murder. Whelan later sought to withdraw his guilty plea. Under those facts, 

a plurality of the Supreme Court stated “[a]appellant pleaded guilty after the 

Commonwealth presented its case. When a defendant pleads guilty after the 

Commonwealth has commenced its case, we hold that the Commonwealth will 

be substantially prejudiced” if the defendant is allowed to withdraw his plea. 

Whelan, 392 A.2d at 1364. Although the language of Whelan seems to adopt

a bright line test that prejudice occurs “after the Commonwealth has 

commenced its case,” under the facts, the Commonwealth had actually 

concluded its entire case. 

Again, we need not, and therefore will not, decide the merits of this 

issue. We simply remind the trial court that plurality decisions are not binding 

authority. 

In sum, we find no abuse of discretion on behalf of the trial court in 

denying Ellis’ motion to withdraw his guilty plea because Ellis offered no 

plausible claim of innocence. The court’s judgment was manifestly reasonable 

under the circumstances, and was not motivated by partiality, bias or ill-will. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/17/18