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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant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

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- 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 Vi nson (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, an d a variety of others, after he was accused of forcing himself on a wom an (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 ple a agreement with the

____________________________________________ * Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3124.1 and 2902(a), respectively.J-A21034- 14

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Commonwealth immediately before a jury was selected. T he 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 in nocence and claimed that his guilty plea “was the product of his deteriorate d 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 h earing, Vinson again claimed that he was innocent of the relevant cr imes. N.T., 12/27/2012, at 19. Vinson complained about his plea cou nsel and alleged that the incident “was all about the drugs for sexual f avor .” Id. at 3-18, 20. In response, Assistant District Attorney Matthew Quigg argued that the Commonwealth would be substantially prejudiced if Vin son 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 enti tled to, and every right and privilege that he is entitled to und er 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 tra ck the [Complainant] down. I feel confident in that 30-day period we would be a ble to do so. If we are able to do so then the Commonwealth would have no legal basis to oppose his motion to withdraw h is guilty plea.J-A21034- 14

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Id. at 34- 35. The trial court granted ADA Quigg’s request and entere d an order providing the Commonwealth with an additional 30 da ys to find the Complainant. The court scheduled a new hearing for Ja nuary 28, 2013. On January 30, 2013, the trial court entered an order i ndicating that the Commonwealth had “requested an additional one to two weeks in order to attempt to locate the [C]omplainant,” and scheduled an other hearing for February 11, 2013. 2 During this hearing, the Commonwealth presented the t estimony of

Detective Michael Shade. Detective Shade testified tha t he had been attempting to locate the Complainant since January 2, 2013. N.T., 2/11/2013, at 4. Detective Shade indicated th at 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 Florid a in 2012. Id. at 5. Since that time, contact between the Complainant and h er 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 O pinion, 11/21/2013, at 5.J-A21034- 14

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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 Cri minal Intelligence

Center

. Id. As a result, Detective Shade received a report indica ting 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 t he department stating that the Complainant had been located “at the Homing Inn on Federal Highway in Boynton Beach, Florida, living wi th 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 phon e call from another Florida police officer, who informed him that the Complainant “was now staying at the Gold Sands Motel in Woolbright, Fl orida.” 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 Complain ant, but was unableJ-A21034- 14

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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 tha t he was confident that the Complainant would one day be locat ed. Id. at 14. The trial court asked Detective Shade if there was a way th at the Complainant could be forced to return to Pennsylvania, and Detectiv e Shade indicated “[w]e could subpoena a warrant down to Florida, is my u nderstanding.” Id.

at 15. 4

____________________________________________ 3 Detective Shade did relate an incident in which an un identified woma n answered the phone, but she denied being the Complain ant 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 repre sented by counsel. For example, at the February 11, 2013 hearing, the trial court instructed Vinson that “you’re represented by counsel, but you fil ed this motion pro se. You need to have a discussion with your counsel as to wha t crossexamina tion, if any, you want.” N.T., 2/11/2013, at 10. Vin son was then made to cross-examine Detective Shade himself, while h is plea counsel watched. Vinson expressed his belief that his plea counsel was supposed to be acting as his advocate, and explained that he had no t 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 b ehalf of Vinson, nor was a hearing held to establish that Vi nson 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 conti nue such (Footnote Continued Next Page)J-A21034- 14

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On March 5, 2013, the trial court entered a Memorandu m Opinion and Order which granted Vinson’s motion to withdraw his gu ilty 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 continui ng Vinson’s trial indefinitely and scheduling a conference for March 28 , 2013. On April 3, 2013, the Commonwealth filed an “Applicat ion to Amend Order to Include Statement Specified in 42 Pa.C.S. § 702(b).” In its Application, the Commonwealth requested that the tria l court amend its order of March 5, 2013 so as to permit the Commonwealt h 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 it s Order to Include the (Footnote Continued) _______________________ representation through direct appeal or until grante d leave to withdraw by the court [.]”); Pa.R.Crim.P. 121 (discussing waiver of counsel and appointment of standby counsel). Thus, the trial court w as 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 a nd that an immediate appeal from the order may materially advance the ult imate 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 relevan t language in an interlocutory order, and the trial court refuses, the p arty may petition this Court to review the trial court’s decision. Pa.R.A.P. 1311 (Official Note).J-A21034- 14

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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. 15 13.” In its Petition, the Commonwealth argued that the trial court erred by refusing to amen d 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 appe al pursuant to Pa.R.A.P. 1925, and the Commonwealth timely complie d. The Commonwealth now raises the following issue on app eal: “Whether the lower court abused its discretion by allowi ng defenda nt to withdraw his guilty plea to sex crimes, where the [Comp lainant] moved outof

- state after the plea and is no longer available to t estify 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 t he entry of the plea, the Commonwealth's prosecution of its cas e is in a worse position tha[n] it would have been had the tria l taken place as originally scheduled. Thus, prejudice is about t he 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.J-A21034- 14

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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 w ill not disturb the court's decision on such motion unless the court abused that discretion. An abuse of discretion is not a m ere error in judgment but, rather, involves bias, ill will, p artiality, prejudice, manifest unreasonableness, and/or misapplicatio n of law. By contrast, a proper exercise of discretion conform s 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 Vin son has asserted his innocence, and that he therefore has produce d a “fair and just reason” to permit the withdrawal of his plea. However, the Commonwealth argues it that has been “substantially prejudiced” as a re sult. Commonwealth’s Brief at 13. The Commonwealth emphasi zes that it is “ in a worse position now at the time of the withdrawal in 2 013 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 w as allowed to withdraw his plea. ” Id. at 15. In its opinion, the trial court concludes that the Comm onwealth was not substantially prejudiced because “the Commonwealth knew whereJ-A21034- 14

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Complainant was located at various times,” but made a “ta ctical 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 Complaina nt back to Pennsylvania,” and that “[t]here is no evidence that [Vi nson] is attempting to play fast and loose with the guilty plea process” becau se the Compla inant

____________________________________________ 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 app lication. The application shall be supported by an affidavit sett ing forth adequate cause for the court to conclude that the witness will fail to appear when required if not held in custody or rel eased on bail. Upon receipt of the application, the court may i ssue 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 coul d bring the Complainant to Pennsylvania by “enforc[ing] the outstan ding 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 attach ed 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 op inion. ” Hatalowich v. Bednarski , 461 A.2d 1292, 1294 (Pa. Super. 1983) . Moreover, “ a court may not ordinarily take judicial notice in one case o f 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) ).J-A21034- 14

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still was residing in Pennsylvania at the time Vinson fi rst 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 permitti ng Vinson to withdraw his guilty plea. While the unavailability of a critica l witness is an important factor in assessing substantial prejudice, 9 the record here demonstrates that the Commonwealth has consistently been able to locate th e Complainant in Florida. In a period of about one month, Detective S hade located the Complainant twice: once when she was living “ at the Homing Inn on Federal Highway in Boynton Beach,” and again when she was livin g 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 explai ned, the Commonwealth may issue a subpoena or seek to have the Complainant de tained as a material witness pursuant to Pa.R.Crim.P. 522. Thus, despite its protestations to the contrary, the C ommonwealth 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 wh ere, inter alia , there was no evidence that th e Commonwealth “ cannot locate, secure the attendance of, or obtain cooperation from the comp lainants ”); Commonwealth v. Kirsch , 930 A.2d 1282, 1287 (Pa. Super. 2007), appeal denied , 945 A.2d 168 (Pa. 2008) (finding no substantial preju dice because, inter alia , “ [t]his is not a situation where in the interim a witne ss has died or left the jurisdiction, or where key evidence has been i nadvertently lost or destroyed ”).J-A21034- 14

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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 V inson, so long as it exercises reasonable diligence to secure the Complain ant for trial. Additionally, we agree with the trial court that the Commonwealth has failed to demonstrate that any significant expense wou ld be incurred by bringing the Complainant back to Pennsylvania, and th at the timing of Vinson’s motion tends to demonstrate that he is not att empting to abuse the guilty plea process. 10 Vinson filed the motion to withdraw his guilty plea at least seven months before Complainant left the jurisd iction, 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 unti l it had become clear that the complaining witness, Ms. Dooley, had appeared to t estify against him and that appellant only sought to withdraw his plea a fter Ms. Dooley had returned to Georgia. ”). 11

____________________________________________ 10 As observed by the trial court, Trial Court Opinion, 11/21/2013, at 20, ADA Quigg indicat ed at the hearing of February 11, 2013, that he was “not arguing the Commonwealth would be substantially preju diced” 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 defen dants have been prevented from withdrawing their pleas are readily d istinguishable from the (Footnote Continued Next Page)J-A21034- 14

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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 t o withdraw guilty plea where “the Commonwealth testified that ... witnesses from other state agencies would have to be flown in from all over the c ountry 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 tri al and had travelled great distances” ) (emphasis added); Commonwealth v. Miller , 639 A.2d 81 5, 819 (Pa. Super. 1994) (affirming denial of pre-se ntence 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 de nial of presentence motion to withdraw nolo contendere plea entered midway through trial after the minor victim testified at length abou t sexual abuse perpetrated by Ammon); Commonwealth v. Mosley , 423 A.2d 427, 429 (Pa. Super., 1980) (reversing grant of pre-sentence motion to withd raw guilty plea where

“ the Commonwealth presented uncontroverted psychiatric te stimony that [the victim] may commit suicide under pressure of having to testify at any trial required by defendant’s plea withdrawal”).