J-S45037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CORY SUTTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2498 EDA 2021

Appeal from the Judgment of Sentence Entered August 18, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0009145-2019

COMMONWEALTH OF PENNSYLVANIA

v.

CORY SUTTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2499 EDA 2021

Appeal from the Judgment of Sentence Entered August 18, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0001710-2020

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 22, 2023

Cory Sutton (Appellant) appeals from the judgment of sentence imposed 

after he entered a negotiated guilty plea to two counts of strangulation and 

one count of retaliation against a victim.1

The Commonwealth summarized the following facts at the plea hearing:

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1 18 Pa.C.S.A. §§ 2718 and 4953.
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[O]n November 22, 2019, at about ten o’clock p.m.[, Appellant]

came to the complainant’s home on the 1300 block of Gilham 

Street. The complainant had asked [Appellant] to come over to 

get his belongings. They were in a romantic relationship at the 

time. [Appellant] came to the 1300 block of Gilham Street, ran 

at the complainant, put his hands around her neck and impeded 

her breathing.

After this incident ... the complainant obtained a protection 

from abuse order, which was numbered 1911B7864. A protection 

from abuse hearing was scheduled at Philadelphia Family Court 

for November 26, 2019. [Appellant] and the complainant were 

both aware of that hearing.

[O]n November 26, 2019, at about nine o’clock in the 

morning at 15th and Cherry Streets here in the city and county of 

Philadelphia outside of Family Court the complainant parked her 

vehicle and was approaching Family Court when she was 

approached by [Appellant], who again put his hands around her 

neck, impeded her breathing, and stated to her, so this is what 

we’re doing.

N.T., 8/18/21, at 11.

The Commonwealth charged Appellant with strangulation as to the 

November 22, 2019, incident (CP-51-CR-0009145-2019), and strangulation 

and retaliation relating to November 26, 2019, incident (CP-51-CR-0001710-

2020). The trial court consolidated the cases on November 13, 2020. See

Order, 11/13/20 (stating cases were consolidated “by agreement and the [trial 

c]ourt’s ruling”).

The trial court explained:

On August 18, 2021, [Appellant] appeared with Plea 

Counsel before th[e trial c]ourt to enter into a negotiated guilty 

plea. [Appellant] completed the written colloquy forms ... and 

engaged in a lengthy oral colloquy with the [trial c]ourt.
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***

The Commonwealth then put on the record the facts, establishing 

the offenses underlying the guilty plea. NT 8/18/21 at 11-12. 

After hearing the Commonwealth’s facts, the [trial c]ourt asked, 

“Are those the facts [on] which you’re basing the guilty plea?” to 

which [Appellant] responded, “Yes.” The [trial c]ourt then stated, 

“I do find a factual basis for the guilty plea has been established. 

I’m satisfied [Appellant’s] decision to plead guilty is knowing, 

intelligent, and voluntary. I will accept this plea.” NT 8/18/21 at 

12. [Appellant] then entered pleas of guilty to the three charges 

contained in two separate dockets. NT 8/18/21 at 13.

[Appellant] waived a pre-sentence investigation report, and 

the parties agreed to move forward to sentencing immediately. 

Id. The Complainant appeared and gave a victim impact

statement[;] the statutory sentencing guidelines were placed on 

the record[;] Defense counsel spoke on [Appellant’s] behalf[;]

and when informed of his right of allocution, [Appellant] waived 

his opportunity to make any statement on his own behalf. NT 

8/18/21 at 17-18. [The trial court sentenced Appellant to an 

aggregate 5 – 10 years in prison.]

Eight (8) days later, on August 26, 2021, [Appellant], 

through new counsel, filed a motion to withdraw his guilty plea, 

alleging that his plea was not knowing, intelligent, and voluntary,

due to coercion when Plea Counsel informed [Appellant] that “she 

would need to withdraw from the case if it went to trial, as prior 

counsel was mentioned in a text message between the

complainant and [Appellant’s] brother, which was shown to prior 

counsel by the assigned prosecutor, and the text was going to be 

part of the evidence in the case.”

A hearing was held on [Appellant’s] motion on November 

19, 2021, during which [Appellant] testified on the morning of his 

guilty plea, Plea Counsel came to see him after having

conferenced with the Commonwealth, and explained that there 

was evidence that implicated both [Appellant’s] mother and 

brother in illegal third-party communications with Complainant, as 

well as text messages that mentioned Plea Counsel, and therefore 

created a conflict of interest, requiring counsel to withdraw from 

the case. NT 11/19/21 at 6-8. [Appellant] said, “so that’s when 

she said I should just take the deal. That’s the best deal that I 
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could take.” NT 11/19/21 at 7-8. After hearing [Appellant’s] 

testimony and Counsel’s argument, the [c]ourt ruled:

All right. I have reviewed the petition. As 

counsel stated earlier, everything in his written

motion is adopted as oral argument. As counsel notes 

in this, there needs to be a pretty extraordinary bar 

to withdraw a guilty plea after the sentence, which is 

[ ] manifest injustice.

Given the fact that he was colloquied on the 

record, he was sworn, I asked him if he was doing this 

knowingly, intelligently, and voluntarily, which is the 

whole purpose of the plea. And the fact that there’s 

no (inaudible) claim of innocence anywhere in this 

motion, which is what’s normally looked at to have 

something withdrawn before sentencing, I’m going to 

deny counsel’s motion to withdraw the guilty plea. 

The sentence is to stand.

N.T. 11/19/21 at 15-16.

On December 1, 2021, [Appellant] filed a timely notice of 

appeal. Th[e trial c]ourt ordered [Appellant] to file a concise 

statement of matters complained of on appeal pursuant to 

Pa.R.A.P.1925(b) on December 3, 2021. On December 20, 2021, 

Defendant filed a timely 1925(b) statement.

Trial Court Opinion, 1/26/22, at 1, 3-4 (citations to exhibits omitted). This 

Court consolidated the appeals sua sponte on December 27, 2021.

Appellant presents the following question for review:

Did the lower court err and abuse its discretion in denying

[Appellant’s] post-sentence motion to withdraw his guilty plea, 

where he proved that the plea was not knowing and intelligent? 

Appellant’s Brief at 7.

Appellant argues the trial court erred in denying his motion to withdraw 

his plea because “the evidence proved his plea was not knowing or intelligent.” 
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Appellant’s Brief at 10. Appellant references his testimony and evidence of 

recorded phone calls he made “merely hours after he pled and was 

sentenced.” Id. at 12. According to Appellant, these recordings “corroborated 

the testimony revealing that [his] plea was not knowing or intelligent.” Id. 

Appellant claims the conversations he had with his counsel “show that plea 

counsel erroneously advised [Appellant] to enter a plea because otherwise 

[Appellant’s] mother and brother could be in legal jeopardy.” Id. at 13. 

Appellant further claims “he pleaded guilty because he thought that he would 

have to go to trial in one day with an attorney that did not know his cases.” 

Id.

The Commonwealth argues the trial court “did not abuse its discretion 

when it denied [Appellant’s] post-sentence motion to withdraw his guilty plea 

because the thorough colloquy established [his] plea was knowing, intelligent, 

and voluntary.” Commonwealth Brief at 7, 12. The Commonwealth notes 

that the two phone recordings Appellant relies upon were “one between 

[Appellant] and his fiancé and the other between [Appellant] and his mother 

and brother.” Id. at 4. The Commonwealth asserts,

even if the trial court believed [Appellant’s] unsupported claims 

that he plead[ed] guilty because his plea attorney told him his 

brother and mother would get in trouble for illegally contacting 

the victim and that she (his plea attorney) would not be able to 

represent him at trial, those facts are of no consequence to the 

validity of [A]ppellant’s plea. He was permitted to accept the plea 

for any reason he chose. That he was motivated by his attorney’s 

statements do[es] not make his plea unknowing, unintelligent, or 

involuntary. See Commonwealth v. Yager, 685 A.2d 1000 (Pa. 

Super. 1996) (holding appellant’s guilty plea valid when he did so 
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in hope of a more lenient sentence); Commonwealth v. 

Rodriguez, 2018 WL 831950 (Pa. Super. 2018) (holding 

appellant entered his guilty plea voluntarily, intelligently, and 

knowingly even though appellant claims he plead guilty in hopes 

that he would be released before his terminally-ill mother died and 

he was afraid of the how the stress of a trial would impact his 

mother); Commonwealth v. Freedman, 2015 WL 6872607 (Pa. 

Super. 2015) (holding Appellant’s testimony that he plead guilty 

because he wanted to go home does not invalidate the plea).

Commonwealth Brief at 11-12.

“It is well-settled that the decision whether to permit a defendant to 

withdraw a guilty plea is within the sound discretion of the trial 

court.” Commonwealth v. Kehr, 180 A.3d 754, 757 (Pa. Super. 2018) 

(citation omitted). Because “discretionary power can only exist within the 

framework of the law,” a trial court must exercise discretion “on the foundation 

of reason, as opposed to prejudice, personal motivations, caprice or arbitrary 

action.” Id. (citation omitted). A trial court abuses its discretion when its 

decision “represents not merely an error of judgment, but where the judgment 

is manifestly unreasonable or where the law is not applied or where the record 

shows that the action is a result of partiality, prejudice, bias or ill 

will.” Id. (citation omitted). Because we recognize the trial court, “[a]s the 

fact-finder, [is] in the best position to assess the credibility of the witnesses’ 

testimony,” we “will not reverse a trial court’s credibility determination absent

the court’s abuse of discretion as fact finder.” Commonwealth v. Moser, 

921 A.2d 526, 530 (Pa. Super. 2007).

Further, Pennsylvania law presumes a defendant who enters a guilty 

plea “was aware of what he is doing.” Commonwealth v. Pollard, 832 A.2d 
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517, 523 (Pa. Super. 2003). He bears the burden of proving otherwise. Id. 

To prevail on a post-sentence motion to withdraw a guilty plea, a “defendant 

must demonstrate that manifest injustice would result if the court were to 

deny [the] motion[.]” Kehr, 180 A.3d at 756-57 (citation omitted). Manifest 

injustice exists where “the plea was not tendered knowingly, intelligently, and 

voluntarily.” Id. at 757 (citation omitted).

Before accepting a plea, the trial court must conduct an on-the-record 

inquiry to determine whether the defendant understands and voluntarily 

accepts the terms of the plea agreement. Pa.R.Crim.P. 590(B)(2). In 

determining a plea’s validity, the trial court is not bound to consider only the 

defendant’s testimony at the colloquy; rather, it “must examine the totality of 

circumstances surrounding the plea.” Kehr, 180 A.3d at 757 (citation 

omitted). This “include[s], but [is] not limited to[,] transcripts from other 

proceedings, off-the-record communications with counsel, and written plea 

agreements.” Commonwealth v. Fears, 836 A.2d 52, 64 (Pa. 2003).

Mindful of the foregoing law, we discern no error or abuse of discretion 

by the trial court. The trial court held a hearing in response to Appellant’s 

post-sentence motion to withdraw his plea. Appellant testified that he had 

not planned to enter a guilty plea. N.T., 11/19/21, at 6. Appellant stated he 

decided to plead guilty because his counsel at the time told him, “if we go to 

trial she would have to come off my case, and I won’t have her as a lawyer.” 

Id. at 8. Appellant also claimed plea counsel told him “I should just take the 
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deal,” and “that’s the best deal that I could take.” Id. Appellant averred he 

“was forced to take the deal.” Id. at 9.

Appellant explained that after he entered his negotiated plea, he called

his fiancé and mother. Id. at 10. He introduced the calls into evidence. See 

id. at 11-12. Appellant did not present any other witnesses. After hearing 

the evidence, the trial court addressed Appellant’s counsel, stating:

I have an assertion from [Appellant, who when he entered 

his plea], swore under oath when I asked him whether he was 

being forced to, coerced in any way to plead guilty, he said no.

So ... my familiarity is what [Appellant] told me under oath, 

Counsel. I heard this conversation. Just saying his lawyer said 

this.

Id. at 13.

The trial court also referenced the law, observing that

there needs to be a pretty extraordinary bar to withdraw a guilty 

plea after the sentence, which is the manifest injustice. Given the 

fact [Appellant] was colloquied on the record, he was sworn, I 

asked him if he was doing this knowingly, intelligently, and 

voluntarily, which is the whole purpose of the plea. And the fact 

that there’s no (inaudible) claim of innocence anywhere in this 

motion, which is what’s normally looked at to have something 

withdrawn before sentencing, I’m going to deny counsel’s motion 

to withdraw the guilty plea.

Id. at 15-16.

Our review reveals no manifest injustice. Kehr, 180 A.3d at 756-57 

(petitioner seeking post-sentence withdrawal of guilty plea must demonstrate 

manifest injustice would result from the court’s denial). As trial court 

reasoned:
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The [trial c]ourt’s colloquy covered each of the six (6) required 

elements, at the end of which the [c]ourt concluded [Appellant’s] 

plea was “knowing, intelligent, and voluntary.” N.T., 8/18/21 at 

12. ... Here, [Appellant] has neither alleged innocence, nor any 

evidence of having been coerced to plead guilty; rather Plea 

Counsel communicated all the facts available to her to best inform 

her client of the Commonwealth’s evidence against him and 

recommended to him that his best disposition was by way of [a] 

negotiated guilty plea. N.T., 11/19/21, at 6-8. Moreover, 

[Appellant] confirmed both orally and in writing that he 

understood the terms of his plea agreement, was satisfied with 

his attorney, and had no further questions before proceeding. 

See Exhibit A [(written colloquy forms)]. Therefore, [Appellant’s]

issue on appeal is without merit.

Trial Court Opinion, 1/26/22, at 6-7.

Upon review, we discern no error or abuse of discretion. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2023