J-S24004-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

JENNIFER LYNN GESUALE

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1305 WDA 2020

Appeal from the Order Entered November 4, 2020

In the Court of Common Pleas of Westmoreland County Criminal Division 

at No(s): CP-65-CR-0004392-2018

BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED: JANUARY 5, 2022

The Commonwealth appeals from the Order granting Appellee Jennifer 

Lynn Gesuale’s post-sentence Motion to Withdraw her negotiated guilty plea

to one count of Simple Assault.

1 After careful review, we affirm. 

We glean the following factual and procedural history from the trial 

court’s opinion and the certified record. On September 9, 2018, officers from 

the Murrysville Police Department responded to a domestic violence report at 

Appellee’s address. When they arrived, Appellee’s husband told them that 

Appellee had hit him about his face, scratched him, and choked him during an 

argument. The police immediately took Appellee into custody. On December 

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2701(a)(1).
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7, 2018, the Commonwealth filed an information charging Appellee with 

Simple Assault and Strangulation.

2 Appellee was released on an unsecured 

bond.

Richard H. Galloway, Esq., entered his appearance as Appellee’s counsel

on December 31, 2018. The court originally set trial for June 2019 but granted 

multiple continuances in response to court delays and Appellee’s motions, 

eventually scheduling trial for December 2, 2019. 

In June 2019, Appellee and her husband appeared in a divorce hearing

under a separate docket. Three months later, during a dispute with court staff 

regarding her request for transcripts from the June hearing, Appellee 

surreptitiously recorded several telephone conversations with members of the 

court staff and posted them on the internet. The court staff discovered the 

recordings, and in response, the Commonwealth charged Appellee with 

violations of the Wiretap Act under a separate docket.

As a result of the wiretap violations, the court revoked Appellee’s bond 

on October 21, 2019, and she returned to jail. In November 2019, the court 

granted Attorney Galloway’s Motion to Withdraw, and appointed new counsel, 

Emily Smarto, Esq. After the court continued the trial in the instant matter to 

February 2020, Appellee filed a motion to reinstate her bond. The court 

granted the motion on December 23, 2019, and Appellee was released from 

jail.

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2 18 Pa.C.S. §§ 2701(a)(1) and 2718(a)(1), respectively.
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On February 5, 2020, the court continued the case until April due to 

court delays, and subsequently continued the case several more times in 

response to the Covid-19 judicial emergency. On July 27, 2020, on 

Defendant’s motion, the court granted an additional continuance and removed 

the case from the trial list to allow for plea negotiations. 

At an October 27, 2020 Plea Hearing held by the Hon. Timothy Krieger,

Appellee’s counsel announced that Appellee had agreed to plead guilty to 

misdemeanor Simple Assault in exchange for the dismissal of the felony 

Strangulation charge and a recommended sentence.

3 The Commonwealth 

then informed the court that it recommended a term of incarceration of “not 

less than 79 days, nor more than 23 months[, with] credit for 79 days 

previously served,” and stated that it had “no objection to her being paroled 

forthwith[.]” N.T. Plea and Sentencing, 10/27/20, at 2-3.

The court asked Appellee to confirm if the above terms were “what [she 

was] promised[,]” and Appellee replied “Yes.” Id. at 4. The court then asked 

if there was “[a]nything else promised . . . that wasn’t mentioned today[.]” 

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3 Appellee also submitted a written, signed colloquy in which she 

acknowledged that she understood her rights and the potential consequences 

of the plea. However, the written colloquy itself did not actually contain within 

it a thorough explanation of the consequences of her plea. Rather, attached 

to the back of the written colloquy is a standardized form entitled “General 

Conditions Governing Probation, Parole and Intermediate Punishment.” See

attachment to Guilty Plea Petition, dated 10/27/20. Although this form states 

that “[a]s a part of your negotiated plea agreement, you will be sentenced to 

a period of supervision,” neither Appellee nor her attorney signed or initialed 

this attachment. The record from the plea hearing contains no indication that 

Appellee was aware of this annexed statement. See N.T. Plea, 10/27/20.
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Id. In an extended, rambling reply, Appellee answered that she believed that 

the Commonwealth had abandoned an earlier agreement to a global plea 

bargain that would have also disposed of her wiretap charges, and described 

the terms of yet another abandoned plea deal that her prior counsel had 

negotiated with the Commonwealth. Id. at 4-5. Appellee concluded by airing 

general frustrations regarding her divorce. Id. at 8-10. In response, the trial 

court reviewed the history of the plea negotiations with Appellee’s counsel and 

explained to Appellee that her divorce was a separate matter over which it 

had no authority. 

The court then engaged Appellee in a colloquy to determine whether her 

plea was knowing, intelligent, and voluntary. The court explained that the 

maximum sentence under the Simple Assault statute was two years 

imprisonment and a $5,000 fine. It then explained the elements of the simple 

assault offense, and asked Appellee if she understood that charge. Appellee 

replied that she did. At no point during the colloquy did the court ask Appellee 

to confirm that she understood the possible range of sentences under the plea

or that her sentence could include a period of parole following incarceration.

At the conclusion of this colloquy, the court asked Appellee “are you 

pleading guilty?” Id. Appellee replied “I guess that’s my choice today, yes.” 

Id. at 11. The court instructed Appellee that she also had the right to plead

not guilty and that the decision was ultimately hers, and asked again if she 

chose to plead guilty. This prompted another extended discussion, during 

which Appellee expressed ambivalence over whether she should “just take it 
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to trial” or whether she should accept the plea so that the matter could “be 

over with[.]” Id. at 12-13.

At the close of this exchange, Appellee asked the trial court “[s]o just 

go ahead and do it? You think that’s my best interest to?” Id. at 14. The court 

explained that it would not answer that question for her, after which she 

responded, “that’s fine, yes.” Id. The court then announced that, “based on 

your statements . . . I’ll accept your plea as in your best interest.” Id.

The court immediately proceeded to sentencing. It adopted the 

Commonwealth’s recommendation and sentenced Appellee to 79 days to 23 

months incarceration with credit for time served, and directed that Appellee

be “paroled forthwith[.]” Id. at 14. The court then directed Appellee to meet 

with a probation officer, and counsel for both Appellee and the Commonwealth 

left the courtroom.4 Soon after leaving, Appellee returned to the courtroom 

alone and explained to Judge Krieger that she did not understand that her 

sentence would include a period of parole and requested to withdraw her guilty 

plea. He advised Appellee to discuss the matter with counsel and, if 

appropriate, file a motion to withdraw the plea. 

Two days later, on October 29, 2020, Appellee filed a Motion to 

Withdraw her guilty plea. In the motion, Appellee averred that “she was 

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4 Because Appellee’s sentence was less than 24 months, the common pleas 

court retained the authority to grant parole, and the Westmoreland County 

Adult Probation and Parole Department, not the Pennsylvania Board of 

Probation and Parole, was responsible for supervising her parole. 42 Pa.C.S. 

§ 9776(a), Fross v. Cty. of Allegheny, 20 A.3d 1193, 1196 n.3 (Pa. 2011).
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unaware that her sentence included a period of parole” and that, therefore,

“she did not make a knowing, voluntary, or intelligent plea[.]” Motion to 

Withdraw Guilty Plea, dated 10/29/20, at ¶¶ 2-3. The court granted the 

motion on the same day. Neither the plea withdrawal motion nor the court’s 

order appeared on the docket until November 4, 2020.

On November 10, 2020, the Commonwealth filed a Motion for 

Reconsideration, noting that it was not aware that any post-sentence motion 

to withdraw the plea had been filed until November 4, 2020, after the court 

had granted it. In response, the court scheduled a hearing on the 

Commonwealth’s motion for November 23, 2020. 

At the hearing, Attorney Smarto stated that Appellee had contacted her 

“immediately” after the hearing to request to withdraw her plea. N.T.

Reconsideration, 11/23/20, at 4. She also told the court that she believed that 

Appellee did not understand that her sentence would include a period of 

parole. She explained that when she told Appellee “you’re not getting any 

additional time,” Appellee “misconstrued” this to mean that her plea did not 

include any additional period of supervision. Id. Appellee herself stated that, 

at the time she entered her plea, she believed that her negotiated sentence 

did not include any period of supervision following the sentence of time served.

Id. at 8. 

Judge Krieger observed that, based on his experience with Appellee, he 

understood her to be “generally confused in this courtroom,” and that 

Appellee’s testimony at the plea hearing demonstrated that “at the time, she 
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wasn’t sure what she wanted to do.” Id. at 5, 15. He also described how 

“almost immediately after” the initial hearing, Appellee reentered his 

courtroom alone and tried to withdraw her plea after learning that her 

sentence included a period of parole. He considered this act to be additional 

evidence that she did not understand the terms of her sentence when she 

entered her plea. Id. at 5. 

At the conclusion of the hearing, the court denied the Motion for 

Reconsideration, announcing “that, based on both [Appellee’s] statements 

today, based on my recollections, and also the transcript, she was very 

undecided about what to do, based on my observation, however, and based 

on the fact that she came down almost immediately after, the plea was not 

entered knowingly or intelligently at the time.” Id. at 16.

The Commonwealth filed a timely Notice of Appeal. Both the 

Commonwealth and the trial court have complied with Pa.R.A.P. 1925. 

The Commonwealth presents the following question:

Whether the court below erred in granting Appellee’s postsentence Motion to Withdraw Guilty Plea where the lower court 

conducted a proper colloquy, Appellee completed a guilty plea 

petition with her attorney and Appellee failed to carry her burden 

to demonstrate prejudice on the order of manifest injustice?

Appellant’s Br. at 5 (unnecessary capitalization omitted). 

“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). We therefore review a trial court’s decision on a motion to withdraw 
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a guilty plea for abuse of discretion. Id. Because “discretionary power can 

only exist within the framework of the law,” a trial court must exercise it “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 that 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).

To prevail in 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 court should conduct on an on-the-record 

inquiry to determine whether the defendant understands and voluntarily 

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

course of the colloquy, the court should, inter alia, inquire into whether the 

defendant understands the range of possible sentences for the charges to 

which she is pleading guilty. Commonwealth v. Morrison, 878 A.2d 102, 
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107 (Pa. Super. 2005). 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). 

Pennsylvania law presumes that a defendant who enters a guilty plea is

aware of what she is doing. Commonwealth v. Pollard, 832 A.2d 517, 523 

(Pa. Super. 2003). Although a defendant who pleads guilty is bound by the 

statements she makes in open court and cannot later assert grounds for 

withdrawing the plea that contradict the statements she made at her plea 

colloquy, the “law does not establish a per se rule that may be applied rigidly

with no consideration of the nature of the averments made at the guilty plea 

colloquy in comparison to the claims raised on appeal.” Id. at 524. 

In the instant case, the trial court granted Appellee’s Motion to Withdraw 

upon concluding, as a matter of fact, that Appellee did not understand the 

terms of her negotiated plea. As it explained in its 1925(a) Opinion, it found 

Appellee’s plea not knowing, intelligent, and voluntary because, “although she 

expressed that she understood the sentencing aspect of her negotiated plea, 

she did not correctly and fully appreciate the meaning of the terms of the 

sentence to be imposed by the court.” Trial. Ct. Op. at 6. The court explained 

that it based this conclusion on Appellee’s demeanor during the original plea 
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hearing and Appellee’s “swift and immediate return to the courtroom after 

meeting with her probation/parole officer in order to express her confusion 

and to request to withdraw her guilty plea.” Id. Accordingly, “her plea . . .

was not intelligent, knowing, and voluntary and manifest injustice would result 

from a denial of [Appellee’s] request to withdraw her plea of guilty.” Id. at 

10. 

Our review of the record supports the court’s conclusion that Appellee 

did not enter her plea knowingly, voluntarily, or intelligently. As the factfinder, 

the trial court was permitted to take into account the totality of the 

circumstances surrounding the plea, not just Appellee’s sworn testimony 

during the plea colloquy, in considering the motion to withdraw. The evidence 

presented at both the plea hearing and the reconsideration hearing, including 

the trial court’s observation on the record of Appellee’s immediate postsentence behavior, supports the court’s finding. See generally N.T. Plea, 

10/27/20; N.T. Reconsideration Hearing, 11/23/20, at 16. 

The Commonwealth argues that the trial court abused its discretion and 

erred as a matter of law by allowing Appellee to withdraw her plea postsentence because “Appellee is bound by the statements she made in open 

court.” Commonwealth’s Br. at 21. The Commonwealth further asserts that

because Appellee “offered no testimony under oath” at the reconsideration 

hearing, “Appellee did not establish that a manifest injustice occurred.” Id. at 

21-22, 27. We disagree. 
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The Commonwealth essentially asks us to make a de novo factual 

determination based on the record. This demonstrates a misunderstanding of 

our standard of review set forth above. As we have concluded that there is 

support in the record for the trial court’s finding, we may not reweigh the 

record evidence to reach a different factual determination. The 

Commonwealth’s argument fails to convince us that the trial court abused its 

discretion in reaching its conclusion.

A factual finding that a plea was not entered knowingly, voluntarily, and 

intelligently means, as a matter of law, that the court’s acceptance of such a 

plea is itself a manifest injustice. Kehr, 180 A.3d at 757. Thus, we cannot 

agree with the Commonwealth’s contention that the court committed legal 

error in allowing Appellee to withdraw her plea. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/05/2022