J-A21034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

Appellant

v.

JAMES VINSON,

Appellee No. 1599 EDA 2013 

Appeal from the Order March 5, 2013

In the Court of Common Pleas of Montgomery County 

Criminal Division at No(s): CP-46-CR-0004324-2009

BEFORE: BOWES, OTT, and STRASSBURGER,*JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 27, 2014 

The Commonwealth of Pennsylvania (the Commonwealth) appeals the 

order entered March 5, 2013, which permitted James Vinson (Vinson) to 

withdraw his guilty plea to the crimes of sexual assault and unlawful 

restraint.1

 We affirm. 

Vinson was charged with the aforementioned offenses, and a variety of 

others, after he was accused of forcing himself on a woman (the 

Complainant) in the basement of his home on March 26, 2009. Vinson 

waived his preliminary hearing, and a jury trial was scheduled to begin on 

January 24, 2011. However, Vinson entered into a plea agreement with the 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.

1

 18 Pa.C.S. §§ 3124.1 and 2902(a), respectively. 
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Commonwealth immediately before a jury was selected. The trial court 

accepted Vinson’s guilty plea.

Prior to sentencing, on May 11, 2011, Vinson filed pro se a motion to 

withdraw his plea. In his motion, Vinson asserted his innocence and claimed 

that his guilty plea “was the product of his deteriorated physical and mental 

condition.” Motion to Withdraw Guilty Plea, 5/11/2011, at 1-3 (unnumbered 

pages). A hearing was held December 27, 2012. At the hearing, Vinson 

again claimed that he was innocent of the relevant crimes. N.T., 

12/27/2012, at 19. Vinson complained about his plea counsel and alleged 

that the incident “was all about the drugs for sexual favor.” Id. at 3-18, 20. 

In response, Assistant District Attorney Matthew Quigg argued that the 

Commonwealth would be substantially prejudiced if Vinson were allowed to 

withdraw his plea. ADA Quigg provided the following explanation. 

As of today, I don’t know where the [Complainant] is in 

this case. I have not had contact with her. The number that I 

had for her I called and it is no longer good. I spoke with a few 

relatives of the [Complainant’s], and the number that was good 

a month prior, was no longer good as of last week when I called 

that telephone number. 

As such I would respectfully request the court -- and I 

want to give Mr. Vinson every benefit that he is entitled to, and 

every right and privilege that he is entitled to under the law. And 

as such I would request that we just postpone this matter 30 

days to see if someone from the County Detectives can track the 

[Complainant] down. 

I feel confident in that 30-day period we would be able to 

do so. If we are able to do so then the Commonwealth would 

have no legal basis to oppose his motion to withdraw his guilty 

plea. 
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Id. at 34-35.

The trial court granted ADA Quigg’s request and entered an order 

providing the Commonwealth with an additional 30 days to find the 

Complainant. The court scheduled a new hearing for January 28, 2013. On 

January 30, 2013, the trial court entered an order indicating that the 

Commonwealth had “requested an additional one to two weeks in order to 

attempt to locate the [C]omplainant,” and scheduled another hearing for 

February 11, 2013.2

 

During this hearing, the Commonwealth presented the testimony of 

Detective Michael Shade. Detective Shade testified that he had been 

attempting to locate the Complainant since January 2, 2013. N.T., 

2/11/2013, at 4. Detective Shade indicated that the Complainant’s cell 

phone was out of service, but that he had been in touch with the 

Complainant’s family. Id. at 4-5. The Complainant’s sister-in-law informed 

Detective Shade that the Complainant moved to Florida in 2012. Id. at 5. 

Since that time, contact between the Complainant and her family had been 

____________________________________________ 

2

 The trial court indicates in its opinion that, on the day scheduled for the 

hearing, the Commonwealth instead “requested that a conference occur. At 

the January 28, 2013 conference, ADA Quigg disclosed to the [trial court] 

and Defense Counsel that the Commonwealth was having trouble locating 

Complainant, but that a bench warrant had been issued for her on an 

unrelated matter on December 20, 2012.” Trial Court Opinion, 11/21/2013, 

at 5. 
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“very brief and sporadic.” Id. The Complainant had “occasional” contact with 

her family on the social networking website Facebook. Id. 

Detective Shade further explained that he conducted a search for the 

Complainant with the assistance of the Pennsylvania Criminal Intelligence 

Center. Id. As a result, Detective Shade received a report indicating that the 

Complainant had an address in Delray Beach, Florida. Id. at 6. Detective 

Shade contacted a police department in Florida. Id. On January 9, 2013, 

Detective Shade received an e-mail from a member of the department 

stating that the Complainant had been located “at the Homing Inn on 

Federal Highway in Boynton Beach, Florida, living with a subject named 

Ben.” Id. at 7. A Florida police officer left information with “Ben,” requesting 

that the Complainant call Detective Shade. Id. Detective Shade received no 

response from the Complainant. Id. 

On January 16, 2013, Detective Shade received a phone call from 

another Florida police officer, who informed him that the Complainant “was 

now staying at the Gold Sands Motel in Woolbright, Florida.” Id. The officer 

gave the Complainant Detective Shade’s contact information and requested 

that she give him a call. Id. She did not do so. Id. at 7-8. Detective Shade 

also received a new cell phone number for the Complainant, but was unable 
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to reach the Complainant using that number.3

Id. Detective Shade again 

requested that the Florida police department attempt to track down the 

Complainant. Id. at 9. However, as of the time of the hearing, the 

Complainant had not been found. Id. 

Despite these difficulties, Detective Shade testified that he was 

confident that the Complainant would one day be located. Id. at 14. The 

trial court asked Detective Shade if there was a way that the Complainant 

could be forced to return to Pennsylvania, and Detective Shade indicated 

“[w]e could subpoena a warrant down to Florida, is my understanding.” Id. 

at 15.4

____________________________________________ 

3

 Detective Shade did relate an incident in which an unidentified woman 

answered the phone, but she denied being the Complainant and claimed that 

the detective had the wrong number. N.T., 2/11/2013, at 8-9.

4

 We note with disapproval that Vinson was at times left to fend for himself 

during the underlying proceedings, despite being represented by counsel. 

For example, at the February 11, 2013 hearing, the trial court instructed 

Vinson that “you’re represented by counsel, but you filed this motion pro se. 

You need to have a discussion with your counsel as to what crossexamination, if any, you want.” N.T., 2/11/2013, at 10. Vinson was then 

made to cross-examine Detective Shade himself, while his plea counsel 

watched. Vinson expressed his belief that his plea counsel was supposed to 

be acting as his advocate, and explained that he had not come prepared to 

represent himself. Id. at 11-13 (“I thought he was going to be my 

mouthpiece, but I found out that pro se meant it’s in my hands.”).

It is well-settled that “the disapproval of hybrid representation is 

effective at all levels.” Commonwealth v. Cooper, 27 A.3d 994, 1000 n.9 

(Pa. 2011). Vinson’s plea counsel never withdrew his appearance on behalf 

of Vinson, nor was a hearing held to establish that Vinson wanted to proceed 

pro se with standby counsel. See Pa.R.Crim.P. 120(A)(4) (“An attorney who 

has been retained or appointed by the court shall continue such 

(Footnote Continued Next Page) 
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On March 5, 2013, the trial court entered a Memorandum Opinion and 

Order which granted Vinson’s motion to withdraw his guilty plea and 

scheduled trial for April 3, 2013. On March 26, 2013, the Commonwealth 

sent the trial court an ex parte letter requesting another continuance. The 

following day, the trial court entered orders continuing Vinson’s trial 

indefinitely and scheduling a conference for March 28, 2013. 

On April 3, 2013, the Commonwealth filed an “Application to Amend 

Order to Include Statement Specified in 42 Pa.C.S. § 702(b).” In its 

Application, the Commonwealth requested that the trial court amend its 

order of March 5, 2013 so as to permit the Commonwealth to file a petition 

for permission to appeal with this Court.5

 The trial court denied the 

Application on April 4, 2013. 

On April 15, 2013, the Commonwealth filed with this Court a “Petition 

for Review From the Trial Court’s Refusal to Amend its Order to Include the 

(Footnote Continued) _______________________ 

representation through direct appeal or until granted leave to withdraw by 

the court[.]”); Pa.R.Crim.P. 121 (discussing waiver of counsel and

appointment of standby counsel). Thus, the trial court was not permitted to 

force pro se status on Vinson. 

5

 42 Pa.C.S. § 702(b) provides that when a trial court is of the opinion that 

an interlocutory order “involves a controlling question of law as to which 

there is substantial ground for difference of opinion and that an immediate 

appeal from the order may materially advance the ultimate termination of 

the matter, it shall so state in such order.” A party may then seek 

permission to appeal the interlocutory order. Pa.R.A.P. 1311(b). In the event 

a party petitions a trial court to include the relevant language in an 

interlocutory order, and the trial court refuses, the party may petition this 

Court to review the trial court’s decision. Pa.R.A.P. 1311 (Official Note).
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Language Prescribed by 42 Pa.C.S. § 702(B), Pursuant to Pa.R.A.P. 1311 

(Official Note) and Pa.R.A.P. 1513.” In its Petition, the Commonwealth 

argued that the trial court erred by refusing to amend its order of March 5, 

2013. On June 11, 2013, this Court issued a per curiam order granting the 

Commonwealth’s petition.6

 The trial court then ordered the Commonwealth 

to file a concise statement of errors complained of appeal pursuant to 

Pa.R.A.P. 1925, and the Commonwealth timely complied. 

The Commonwealth now raises the following issue on appeal: 

“Whether the lower court abused its discretion by allowing defendant to 

withdraw his guilty plea to sex crimes, where the [Complainant] moved outof-state after the plea and is no longer available to testify at trial?” 

Commonwealth’s Brief at 4. We consider this issue mindful of the following 

principles. 

A pre-sentence motion to withdraw a guilty plea should be 

liberally allowed and should be granted for any fair and just 

reason unless granting the motion would cause substantial

prejudice to the Commonwealth. An assertion of innocence can 

constitute a fair and just reason for plea withdrawal. In the 

context of a pre-sentence request for plea withdrawal, the term 

“prejudice” means that, due to events occurring after the entry 

of the plea, the Commonwealth's prosecution of its case is in a 

worse position tha[n] it would have been had the trial taken 

place as originally scheduled. Thus, prejudice is about the 

Commonwealth's ability to try its case, not about the personal 

____________________________________________ 

6

 The Commonwealth also requested that this Court “reverse the order of 

the trial court.” In our per curiam order, we denied that request “without 

prejudice to the Commonwealth’s right to again raise the request before the 

merits panel.” Order, 6/11/2013.
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inconvenience to complainants unless that inconvenience 

somehow impairs the Commonwealth's prosecution. 

The decision to grant or deny a motion to withdraw a guilty 

plea rests within the trial court's discretion, and we will not 

disturb the court's decision on such motion unless the court

abused that discretion. An abuse of discretion is not a mere error 

in judgment but, rather, involves bias, ill will, partiality, 

prejudice, manifest unreasonableness, and/or misapplication of 

law. By contrast, a proper exercise of discretion conforms to the 

law and is based on the facts of record. 

Commonwealth v. Gordy, 73 A.3d 620, 623-24 (Pa. Super. 2013), appeal 

denied, 87 A.3d 318 (Pa. 2014) (citations omitted). 

Instantly, the Commonwealth appears to concede that Vinson has 

asserted his innocence, and that he therefore has produced a “fair and just 

reason” to permit the withdrawal of his plea. However, the Commonwealth 

argues it that has been “substantially prejudiced” as a result. 

Commonwealth’s Brief at 13. The Commonwealth emphasizes that it is “in a 

worse position now at the time of the withdrawal in 2013 than at the time of 

the guilty plea in 2011,” because of the added difficulty and expense of 

producing the Complainant to testify. Id. at 13-15. The Commonwealth 

contends that a trial would subject the Complainant to additional trauma and 

distress, and that the trial court’s order creates “the very real danger that a 

sexually violent predator will escape justice because he was allowed to 

withdraw his plea.” Id. at 15. 

In its opinion, the trial court concludes that the Commonwealth was 

not substantially prejudiced because “the Commonwealth knew where 
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Complainant was located at various times,” but made a “tactical decision” 

not to have her returned to Pennsylvania by issuing a subpoena or by 

“proceed[ing] under the material witness procedure.” Trial Court Opinion, 

11/21/2013, at 14, 21.7,8 The court states that “[t]he Commonwealth has 

not demonstrated a great expense to bring Complainant back to 

Pennsylvania,” and that “[t]here is no evidence that [Vinson] is attempting 

to play fast and loose with the guilty plea process” because the Complainant 

____________________________________________ 

7 The “material witness procedure” referenced by the trial court is described 

in our Rules of Criminal Procedure as follows. 

After an accused has been arrested for any offense, upon

application of the attorney for the Commonwealth or defense 

counsel, and subject to the provisions of this chapter, a court 

may set bail for any material witness named in the application. 

The application shall be supported by an affidavit setting forth 

adequate cause for the court to conclude that the witness will fail 

to appear when required if not held in custody or released on 

bail. Upon receipt of the application, the court may issue process 

to bring any named witnesses before it for the purpose of 

demanding bail. 

Pa.R.Crim.P. 522(A). 

8

 The trial court also asserts that the Commonwealth could bring the 

Complainant to Pennsylvania by “enforc[ing] the outstanding bench warrant” 

against her. Trial Court Opinion, 11/21/2013, at 21. We note that there is 

nothing in the certified record confirming that a bench warrant was issued 

against the Complainant. While the trial court attached several exhibits to its 

opinion indicating that such a warrant was issued, “a fact cannot become of 

record by virtue of its inclusion in the trial court opinion.” Hatalowich v. 

Bednarski, 461 A.2d 1292, 1294 (Pa. Super. 1983). Moreover, “a court 

may not ordinarily take judicial notice in one case of the records of another 

case, whether in another court or its own, even though the contents of those 

records may be known to the court.” Woolard v. Burton, 498 A.2d 445, 

448 (Pa. Super. 1985) (quoting Naffah v. City Deposit Bank et al., 13 

A.2d 63, 64 (Pa. 1940)).
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still was residing in Pennsylvania at the time Vinson first sought to withdraw 

his plea. Id. at 19-20 (quotation marks omitted). 

After a thorough review of the record in this matter, we conclude that 

the trial court did not abuse its discretion by permitting Vinson to withdraw 

his guilty plea. While the unavailability of a critical witness is an important 

factor in assessing substantial prejudice,9

 the record here demonstrates that 

the Commonwealth has consistently been able to locate the Complainant in 

Florida. In a period of about one month, Detective Shade located the 

Complainant twice: once when she was living “at the Homing Inn on Federal 

Highway in Boynton Beach,” and again when she was living at “the Gold 

Sands Motel in Woolbright.” N.T., 2/11/2013, at 7. Despite being able to find 

the Complainant, the Commonwealth has not taken the steps necessary to 

insure her presence at trial. As the trial court explained, the Commonwealth 

may issue a subpoena or seek to have the Complainant detained as a 

material witness pursuant to Pa.R.Crim.P. 522. 

Thus, despite its protestations to the contrary, the Commonwealth has 

failed to establish that it is in a “worse position tha[n] it would have been 

____________________________________________ 

9 See Gordy, 73 A.3d at 628 (finding no substantial prejudice where, inter 

alia, there was no evidence that the Commonwealth “cannot locate, secure 

the attendance of, or obtain cooperation from the complainants”); 

Commonwealth v. Kirsch, 930 A.2d 1282, 1287 (Pa. Super. 2007), appeal 

denied, 945 A.2d 168 (Pa. 2008) (finding no substantial prejudice because, 

inter alia, “[t]his is not a situation where in the interim a witness has died or 

left the jurisdiction, or where key evidence has been inadvertently lost or 

destroyed”).
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had the trial taken place as originally scheduled.” Gordy, 73 A.3d at 624. 

The Commonwealth remains fully capable of prosecuting Vinson, so long as 

it exercises reasonable diligence to secure the Complainant for trial. 

Additionally, we agree with the trial court that the Commonwealth has 

failed to demonstrate that any significant expense would be incurred by 

bringing the Complainant back to Pennsylvania, and that the timing of 

Vinson’s motion tends to demonstrate that he is not attempting to abuse the 

guilty plea process.10 Vinson filed the motion to withdraw his guilty plea at 

least seven months before Complainant left the jurisdiction, and it does not 

appear that Vinson was attempting to withdraw his plea in hopes that the 

Complainant would become unavailable. Cf. Commonwealth v. Cole, 564 

A.2d 203, 205-06 (Pa. Super. 1989) (affirming denial of pre-sentence 

motion to withdraw guilty plea where “the Commonwealth argued that 

appellant had waited to enter a plea of guilty until it had become clear that 

the complaining witness, Ms. Dooley, had appeared to testify against him 

and that appellant only sought to withdraw his plea after Ms. Dooley had 

returned to Georgia.”).11 

____________________________________________ 

10 As observed by the trial court, Trial Court Opinion, 11/21/2013, at 20, 

ADA Quigg indicated at the hearing of February 11, 2013, that he was “not 

arguing the Commonwealth would be substantially prejudiced” by the 

expense of transporting a single witness to Pennsylvania. N.T., 2/11/2013, 

at 21-22.

11 The other cases cited by the Commonwealth where defendants have been 

prevented from withdrawing their pleas are readily distinguishable from the 

(Footnote Continued Next Page) 
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Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/27/2014 

(Footnote Continued) _______________________ 

instant matter. See Commonwealth v. Ross, 447 A.2d 943 (Pa. 1982) 

(affirming denial of pre-sentence motion to withdraw guilty plea “which had 

been made after the dismissal of numerous key Commonwealth 

witnesses in reliance on the plea”) (emphasis added); Commonwealth v. 

Dicken, 895 A.2d 50, 54 (Pa. Super. 2006), appeal denied, 907 A.2d 1101 

(Pa. 2006) (affirming denial of pre-sentence motion to withdraw guilty plea 

where “the Commonwealth testified that ... witnesses from other state 

agencies would have to be flown in from all over the country to 

testify”) (emphasis added); Commonwealth v. Carelli, 454 A.2d 1020, 

1023 n.9 (Pa. Super. 1982) (affirming denial of pre-sentence motion to 

withdraw guilty plea where “many Commonwealth witnesses who had 

been victimized by the appellants were present for trial and had travelled 

great distances”) (emphasis added); Commonwealth v. Miller, 639 A.2d 

815, 819 (Pa. Super. 1994) (affirming denial of pre-sentence motion to 

withdraw guilty plea where “the Commonwealth would again be required to 

find another county in which appellant could be tried by a jury unaffected by 

the extensive publicity which had followed his several crimes,” resulting in 

“great financial burden” and “substantial delay”); Commonwealth v. 

Ammon, 418 A.2d 744, 748 (Pa. Super. 1980) (affirming denial of presentence motion to withdraw nolo contendere plea entered midway through 

trial after the minor victim testified at length about sexual abuse perpetrated 

by Ammon); Commonwealth v. Mosley, 423 A.2d 427, 429 (Pa. Super., 

1980) (reversing grant of pre-sentence motion to withdraw guilty plea where 

“the Commonwealth presented uncontroverted psychiatric testimony that 

[the victim] may commit suicide under pressure of having to testify at any 

trial required by defendant’s plea withdrawal”).