J-S81039-16

2016 PA Super 308

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LARRY KPOU

Appellant No. 690 EDA 2016

Appeal from the Judgment of Sentence February 3, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0009272-2015

BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED DECEMBER 29, 2016

Larry Kpou (“Appellant”) appeals from the judgment of sentence 

entered by the Court of Common Pleas of Philadelphia County after it 

accepted his guilty plea to Possession With Intent to Deliver (“PWID”), to 

wit, crack cocaine and marijuana, and Criminal Conspiracy.1 Sentenced to a 

negotiated term of 111⁄2 to 23 months’ incarceration with immediate parole, 

plus three years’ reporting probation, Appellant contends the court 

erroneously refused to grant his post-sentence motion to withdraw his plea. 

We affirm.

The plea court provides an apt history of the case as follows:

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
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On February 3, 2016, The Honorable Mia R. Perez conducted a 

guilty plea colloquy with the Defendant [hereinafter “Appellant”], 

Larry Kpou, who had been sworn under oath. Appellant pled 

guilty.... Judge Perez engaged in a specific line of inquiry, 

advising Appellant on the nature of the charges, the rights he 

was giving up, and the possible sanctions the court was 

authorized to impose. N.T. 2/3/16 at 2-17. Judge Perez 

requested a recitation of the facts from the Assistant District 

Attorney, [who asserted that, on June 19, 2015, a Narcotics 

Field Unit of the Philadelphia Police Department observed one 

Mr. Lugman Garbey sell marijuana to a proven, reliable 

confidential informant (“CI”) as part of a controlled buy carried 

out at the address of 6311 West Girard Avenue. 

On June 21, 2015, the Narcotics Unit arranged for another 

controlled buy at the address and observed Mr. Garbey take the 

buy money from the CI. Garbey then summoned Appellant, who 

handed two packets of marijuana to the CI on the front steps.. 

On June 24, 2015, officers arrested Garbey and Appellant. A 

search of Appellant’s person incident to his arrest disclosed two 

packets of marijuana. A subsequent search of 6311 West Girard 

Avenue recovered three packets of crack cocaine].

Having heard the facts, Judge Perez asked Appellant, “[D]id you 

hear the facts as recited by the District Attorney?” Id. at 16. 

Appellant replied, “Yes.” Id. The Judge then asked, “Are those 

the facts that you’re pleading guilty to here today?” and 

Appellant replied, “Yes.” Id. Appellant did not raise any issue 

with the facts or otherwise.

Judge Perez then imposed the sentence that had previously been 

negotiated by the parties: 11 1⁄2 -23 months’ incarceration with 

immediate parole plus 3 years of reporting probation.

Trial Court Opinion, filed 6/2/16, at 1-2. 

On February 5, 2016, Appellant filed a motion to withdraw his guilty 

plea on the asserted basis that he was “actually innocent” of the crimes 

charged. The court denied Appellant’s motion on March 1, 2016, however, 

and this timely appeal followed.
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Appellant presents one question for our consideration:

[DID] THE TRIAL COURT ERR[] BY DENYING MR. KPOU’S POSTSENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA AS HE 

ALLEGED THAT HE WAS ACTUALLY INNOCENT?

Appellant’s brief at 7.

Appellant argues that a manifest injustice would occur if he were not 

permitted to withdraw his guilty plea because he has asserted that he is 

actually innocent of the offenses in question. In response, the 

Commonwealth claims that Appellant’s bald assertion of innocence fails to 

satisfy the more stringent “manifest injustice” standard predicating 

withdrawal on a defendant’s demonstration that his or her plea was 

unknowingly, unintelligently, or involuntarily tendered.

This Court has delineated the principles and standards that govern a 

defendant’s request to withdraw a guilty plea:

“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); Commonwealth v. Santos, 301 A.2d 829, 830 (Pa. 

1973). “Although there is no absolute right to withdraw a guilty 

plea, properly received by the trial court, it is clear that a 

request made [b]efore sentencing ... should be liberally 

allowed.” Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 

1973). “Thus, in 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.’” Id. at 271. “If the trial 

court finds ‘any fair and just reason’, withdrawal of the plea 

before sentence should be freely permitted, unless the 

prosecution has been ‘substantially prejudiced.’” Id. As a 

general rule, “the mere articulation of innocence [is] a ‘fair and 

just’ reason for the pre-sentence withdrawal of a guilty plea 

unless the Commonwealth has demonstrated that it would be 
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substantially prejudiced.” Commonwealth v. Katonka, 33 

A.3d 44, 46 (Pa.Super. 2011) (en banc ) [ ].

[Of the considerations outlined in Forbes, “the critical one is the 

presence or lack of prejudice to the Commonwealth.” 

Commonwealth v. Boofer, 375 A.2d 173, 174 (Pa.Super. 

1977) (citing Commonwealth v. McLaughlin, 366 A.2d 238, 

241 (Pa. 1976) (stating: “[T]he existence of substantial 

prejudice to the Commonwealth is the crucial factor in 

determining whether to allow a presentence withdraw of a guilty 

plea”)). 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,

945 A.2d 168 (Pa. 2008). When a guilty plea is 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. Mere speculation that 

witnesses would not appear at a subsequent trial or would 

change their stories does not alone rise to the level of 

substantial prejudice. McLaughlin, 366 A.2d at 241.]

In contrast, after the court has imposed a sentence, a defendant 

can withdraw his guilty plea “only where necessary to correct a 

manifest injustice.” Commonwealth v. Starr, 301 A.2d 592, 

595 (Pa. 1973). “[P]ost-sentence motions for withdrawal are 

subject to higher scrutiny since courts strive to discourage the 

entry of guilty pleas as sentencing-testing devices.” 

Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa.Super. 2010), 

appeal denied, 32 A.3d 1276 (Pa. 2011).

***

To be valid [under the “manifest injustice” standard], a guilty 

plea must be knowingly, voluntarily and intelligently entered. 

Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.Super. 

2003). “[A] manifest injustice occurs when a plea is not 

tendered knowingly, intelligently, voluntarily, and 

understandingly.” Commonwealth v. Gunter, 771 A.2d 767, 

771 (Pa. 2001). The Pennsylvania Rules of Criminal Procedure 

mandate pleas be taken in open court and require the court to 

conduct an on-the-record colloquy to ascertain whether a 

defendant is aware of his rights and the consequences of his 
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plea. Commonwealth v. Hodges, 789 A.2d 764, 765 

(Pa.Super. 2002) (citing Pa.R.Crim.P. 590). Under Rule 590, the 

court should confirm, inter alia, that a defendant understands: 

(1) the nature of the charges to which he is pleading guilty; (2) 

the factual basis for the plea; (3) he is giving up his right to trial 

by jury; (4) and the presumption of innocence; (5) he is aware 

of the permissible ranges of sentences and fines possible; and 

(6) the court is not bound by the terms of the agreement unless 

the court accepts the plea. Commonwealth v. Watson, 835 

A.2d 786 (Pa.Super. 2003). The reviewing [c]ourt will evaluate 

the adequacy of the plea colloquy and the voluntariness of the 

resulting plea by examining the totality of the circumstances 

surrounding the entry of that plea. Commonwealth v. 

Muhammad, 794 A.2d 378 (Pa.Super. 2002). Pennsylvania law 

presumes a defendant who entered a guilty plea was aware of 

what he was doing, and the defendant bears the burden of 

proving otherwise. Pollard, supra.

Commonwealth v. Prendes, 97 A.3d 337, 351-54 (Pa.Super. 2014) 

(parallel citations omitted).

Initially, we note that Appellant effectively concedes that he tendered 

a knowing, voluntary, and intelligent guilty plea, a position consonant with 

our review of the guilty plea colloquy and the record at-large. He argues, 

instead, that his post-sentence assertion of innocence, alone, is enough to 

demonstrate the manifest injustice necessary to secure a post-sentence 

withdrawal of a guilty plea. Nothing in our jurisprudence supports such a 

proposition, which runs counter to established precepts that reject defendant 

attempts to disavow self-incriminating statements made at a plea hearing 

absent a showing of coercion, fundamental misunderstanding, or the like. 

See Pollard, at 523 (holding “[a] person who elects to plead guilty is bound 

by the statement he makes in open court while under oath and he may not 

later assert grounds for withdrawing the plea which contradict the 
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statements he made at his plea colloquy.”). Moreover, as noted above in 

our standard of review, our courts have recognized the relevance of an 

assertion of innocence only in the pre-sentence context, explaining that the 

assertion may represent a “fair and just reason” for pre-sentence withdrawal 

of a guilty plea. See Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 

2015).2

____________________________________________

2 Nearly nine months before Appellant’s guilty plea and subsequent motion 

to withdraw, our Supreme Court decided in Carrasquillo that a bare 

assertion of innocence does not provide a per se “fair and just reason” for a 

pre-sentence withdrawal of a guilty plea. In so holding, the Court eschewed 

the former “bright line rule” applicable to pre-sentence motions in favor of 

an inquiry into “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 129. Applying this 

standard to the facts before it, the Court observed:

This case, in our view, illustrates why the existing per se

approach to innocence claims is unsatisfactory. Here, 

Appellant’s assertion was first made in sentencing allocution, 

after the close of the evidentiary record . . . . No request was 

made to reopen the record for an orderly presentation in support 

of Appellee’s request. Moreover, the bizarre statements made 

by Appellee in association with his declaration of innocence 

wholly undermined its plausibility, particular[ly] in light of the 

Commonwealth’s strong evidentiary proffer at the plea hearing. 

In the circumstances, the common pleas court should not have 

been required to forego sentencing; rather, we find that it acted 

within its discretion to refuse the attempted withdrawal of the 

plea.

Id., at 1292-93.

Here, as it is clear that Appellant’s bare assertion of innocence would 

fail to meet the more lenient standard applicable to pre-sentence motions to 

withdrawals, given the record before us, it follows a fortiori that it cannot 

(Footnote Continued Next Page)
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Indeed, this Court has held that post-sentence claims of innocence do 

not demonstrate manifest injustice, see Commonwealth v. Myers, 642 

A.2d 1103, 1108 (Pa.Super. 1994) (holding “[a] defendant’s post-sentence 

recantation of guilt does not rise to the level of prejudice on the order of 

manifest injustice sufficient to require that he be permitted to withdraw his 

plea of guilty.”), and Appellant presents no meaningful argument or legal 

theory on which to distinguish his case from such precedent. This is 

particularly so where, again, Appellant advances no claim of an unknowing, 

involuntary, or unintelligent plea. Accordingly, we discern no merit to the 

present appeal.

Judgment of sentence is AFFIRMED.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2016

(Footnote Continued) _______________________

meet the heightened standard of manifest injustice that applies to his postsentence withdrawal of his plea.
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