J-S64008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

OMAR WRIGHT

Appellant No. 3646 EDA 2015

Appeal from the Judgment of Sentence Entered June 12, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0011468-2012

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED DECEMBER 05, 2016

Appellant Omar Wright appeals from the June 12, 2015 judgment of 

sentence entered in the Court of Common Pleas of Philadelphia County (“trial 

court”), following his guilty plea to third degree murder and robbery.1 Upon 

review, we affirm.

The facts and procedural history underlying this case are undisputed. 

On July 6, 2012, Appellant was arrested in connection with a robbery of a 

bar that resulted in the death of bartender, George Fox. Appellant was 

charged with murder, conspiracy, robbery, theft, receiving stolen property 

and possessing the instrument of a crime (“PIC”). On December 15, 2014, 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(c), and 3701(a)(1)(i). 
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prior to trial, Appellant pled guilty to third degree murder and robbery and 

negotiated a sentence of 20 to 40 years’ imprisonment for third degree 

murder and followed by 4 to 10 years’ imprisonment for robbery. In 

exchange, the Commonwealth nolle prossed the remaining charges. 

Specifically, in pleading guilty, Appellant agreed with the following facts as 

summarized by the Commonwealth:

On Sunday, June 24, 2012, at about 1:16 in the morning, 3rd 

District police officers responded to a robbery in progress, 

unresponsive male inside T Bars Tavern at 8th and Jackson 

Streets in Philadelphia. Police arrived on location and found the 

victim, later identified as George Fox, [a] 44-year old white 

male, suffering from stab wounds to the torso. Medic 43 

responded and pronounced the victim deceased at the scene at 

1:25 a.m.

Our testimony would further include that of the Assistant 

Medical Examiner, Dr. Gary Collins, who would testify that he 

examined the remains and found George Fox had been stabbed 

five times, suffered stab wounds to his chest, left shoulder, left 

arm, forearm, right cheek, and that the cause of death was stab 

wound to the chest; that is, specifically to the heart, and the 

manner of death was homicide.

. . . .

We would further call witness, Angela Bennett, who would 

state that she conversed with [Appellant] previous to the murder 

inside the bar, she knew [Appellant] from the bar, she identified 

[Appellant] to Homicide Detectives, have a signed written 

statement stating that she saw [Appellant] leave and re-enter 

the bar wearing dark clothing, including a hoody and white 

gloves, and that he stabbed the bartender and took money out 

of the register and fled.

We would also call witness, Tiffany Caesar, who would 

state that she knew [Appellant], for a few weeks from the bar. 

She was inside the bar at the time of the homicide, that she did 

converse with [Appellant] inside the bar previous to the 

homicide, that he left and then returned. She knew [Appellant] 

as Oh Dog, and when he returned to the bar, he walked behind 

the bar, stabbed the bartender, she saw the bartender slump to 

the floor, she saw [Appellant] take cash, and she identified his 

photograph for detectives, signed his photograph and signed a 

written statement for the detectives.
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N.T. Guilty Plea, 12/15/14, at 7-9. A sentencing hearing was held on June 

12, 2015. At the hearing, prior to imposition of sentence, Appellant moved 

to withdraw his guilty plea based on his allegation that his counsel was 

ineffective in failing to advise him that his negotiated sentence would be 

consecutive. N.T. Sentencing, 6/12/12, at 3-5 (“I don’t feel as though I was 

helped properly.”). On the same day, the trial court denied Appellant’s presentence motion to withdraw and advised Appellant to file a post-sentence 

motion to withdraw his guilty plea. See id. (“You have 10 days from today’s 

date in which to ask to reconsider your sentence and to withdraw your 

plea.”). On June 15, 2015, Appellant filed a post-sentence motion to 

withdraw the guilty plea, which the trial court denied on November 5, 2015.2 

Appellant timely appealed to this Court. The trial court ordered Appellant to 

file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. 

Appellant complied, raising two assertions of error:

1. [Appellant] is entitled to have his case remanded to the 

trial/sentencing court as that court erred and abused its 

discretion as a matter of law when it denied [Appellant’s] motion 

to withdraw guilty plea on June 12, 2015.

2. [Appellant] is entitled to have his case remanded to the 

trial/sentencing court as that court erred and abused its 

discretion as a matter of law when it denied [Appellant’s] post[-

]sentence motion filed June 15, 2015[.]

____________________________________________

2 Given the fact that Appellant already had moved to withdraw his guilty plea 

prior to sentencing on June 12, 2015, we need not consider his subsequent

post-sentence motion to withdraw the guilty plea as it was superfluous and 

redundant. 
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Rule 1925(b) Statement, 12/23/15. In response, the trial court issued a 

Pa.R.A.P. 1925(a) opinion, concluding that Appellant failed to advance a fair 

and just reason to withdraw his guilty plea. 

On appeal,3 Appellant argues only that the trial court erred in failing to 

allow Appellant to withdraw his guilty plea prior to sentencing. We disagree. 

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

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

Commonwealth v. Unangst, 71 A.3d 1017, 1019 (Pa. Super. 2013) 

(quotation omitted). Although no absolute right to withdraw a guilty plea 

exists in Pennsylvania, the standard applied differs depending on whether 

the defendant seeks to withdraw the plea before or after sentencing. When 

a defendant seeks to withdraw a plea after sentencing, he “must 

demonstrate prejudice on the order of manifest injustice.” Commonwealth 

v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011). However, a presentence motion to withdraw is decided under a more liberal standard. 

Pursuant to Pennsylvania Rule of Criminal Procedure 591: “[a]t 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). 

____________________________________________

3 We note that Appellant here does not expressly challenge the validity of his 

plea agreement. 
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In the seminal decision Commonwealth v. Forbes, 299 A.2d 268 

(Pa. 1973), our Supreme Court delineated the parameters for granting a 

pre-sentence motion to withdraw:

[I]n 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.’ 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. at 271 (internal citations omitted). In Commonwealth v. 

Carrasquillo, 115 A.3d 1284 (Pa. 2015), our Supreme Court reaffirmed the 

Forbes test, noting that: 

[The] Forbes decision reflects that: there is no absolute right to 

withdraw a guilty plea; trial courts have discretion in 

determining whether a withdrawal request will be granted; such 

discretion is to be administered liberally in favor of the accused; 

and any demonstration by a defendant of a fair-and-just reason 

will suffice to support a grant, unless withdrawal would work 

substantial prejudice to the Commonwealth. See Forbes, []299 

A.2d at 271. 

Carrasquillo, 115 A.3d at 1291-92. A sincere and plausible assertion of 

innocence has been held to satisfy the “fair and just reason” standard 

enunciated in Forbes for granting a pre-sentence motion to withdraw a 

guilty plea. See id. at 1292 (“[A] defendant’s innocence claim must be at 

least plausible to demonstrate, in and of itself, a fair and just reason for 

presentence withdrawal of a plea.”). 

The Supreme Court arrived at the same conclusion in a companion 

case decided the same day: Commonwealth v. Hvizda, 116 A.3d 1103 

(Pa. 2015). In Hvizda, the defendant pled guilty to first-degree murder and 
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PIC for the stabbing death of his estranged wife. Id. at 1104. At his 

sentencing hearing two months later, the defendant sought to withdraw his 

plea, asserting “I’m here to maintain my innocence in the charge of murder 

in the first degree.” Id. (record citation omitted). At a subsequent hearing, 

the defendant again stated he was innocent, but offered no evidence in 

support of his claim. The Commonwealth requested the court deny the 

motion, and, in support, introduced into evidence the defendant’s telephone 

conversations from prison in which he stated that although he “‘did it’ . . . he 

wished to stand trial to ‘get some of the story out.’” Id. The trial court 

thereafter denied the motion to withdraw, finding “the Commonwealth had 

‘presented compelling and unique evidence to establish [the defendant’s] 

bald assertion of innocence was at best pretextual and an attempt to 

manipulate the system.’” Id. at 1105. A divided panel of this Court 

reversed on appeal based upon its belief that, under Commonwealth v. 

Katonka, 33 A.3d 44, 49 (Pa. Super. 2011) (en banc), “credibility 

assessments relative to a defendant’s claim of innocence were 

impermissible.” Id. The Supreme Court, disagreed with the decision of this 

Court and opined: 

In the companion case of Carrasquillo, . . . we have 

determined that a bare assertion of innocence—such as [the 

defendant] provided as the basis for withdrawing his guilty 

plea—is not, in and of itself a sufficient reason to require a court 

to grant such a request. See Carrasquillo, []115 A.3d at 1285. 

Accordingly, and for the reasons set forth more fully in that case, 

the common pleas court did not err in denying [the defendant’s] 

withdrawal motion. 

Hvizda, 116 A.3d at 1107. 
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With this legal standard in mind, we now turn to Appellant’s argument 

that the trial court abused its discretion in denying his pre-sentence motion 

to withdraw the guilty plea. Appellant argues that his trial counsel was 

ineffective in failing to advise him that the negotiated sentence sub judice

would be consecutive. Based on our review of the record, we agree with the 

trial court’s conclusion that Appellant failed to assert a claim of innocence, 

let alone proffer any fair and just reason for withdrawing his guilty plea. As 

the trial court explained:

In the case at bar, no claim of innocence has ever been made. 

[Appellant’s] only allegations were that he was unaware that the 

sentence for the robbery was going to run consecutive to the 

third degree murder, leaving an aggregate sentence of twentyfour to fifty years’ incarceration, and he did not think he was 

helped by his counsel. Such claims belie the record. On the first 

page of [Appellant’s] written guilty plea agreement, it is noted 

not once, but twice, that the agreement is for twenty-four to fifty 

years’ incarceration. The agreement is signed on the third page 

and initialed on every page by [Appellant]. During the plea 

hearing, the court asked [Appellant] if he went over the plea 

agreement, if he read and understood every paragraph and if 

the signature on the third page was indeed his signature. In 

fact, the following discussion occurred during the hearing:

The [trial c]ourt: The maximum you could get on this would be 

50 to 100 years in jail. You are getting 24 to 50, so that is going 

to be a legal sentence. Do you understand that?

[Appellant]: “Yes." 

[Appellant] also stated that he was satisfied with his 

attorney’s representation up until that point. 

In the instant case, [Appellant’s] assertions were made at 

the time of allocution. No motion to withdraw the plea had been 

presented in the six months since the entry of the plea. 

[Appellant’s] claim was completely implausible in light of the 

written and oral statements during the negotiated plea hearing. 

No fair and just reason presented to withdraw the plea, and no 

claim of innocence has ever been made. [Appellant] merely 

wanted to reduce the negotiated term of his incarceration.
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Trial Court Opinion, 1/29/16, at 6-7 (internal citations omitted). 

Accordingly, because he did not assert a claim of innocence or otherwise 

proffer any fair and just reason for withdrawing his guilty plea, Appellant is 

not entitled to relief.

The Commonwealth relies on Commonwealth v. Prendes, 97 A.3d 

337 (Pa. Super. 2014) for the proposition that the higher post-sentence 

standard of “manifest injustice” applies sub judice on account of Appellant’s 

entering into a negotiated plea agreement. The Commonwealth notes that 

Prendes applied the rationale outlined in Commonwealth v. Lesko, 467 

A.2d 307 (Pa. 1983), in holding that because the defendant’s “plea 

agreement included a negotiated sentence[, t]he trial court accepted the 

guilty plea with the negotiated sentence[, and thus the defendant] was fully 

aware of the sentence he would receive, the ‘manifest injustice’ standard 

applied.” Prendes, 97 A.3d at 354. In Hvizda, however, our Supreme 

Court disapproved of Lesko’s “idiosyncratic approach to presentence 

withdrawal.” Hvizda, 116 A.3d at 1106. In so doing, the Court sub silentio 

overruled this Court’s conclusion in Prendes upon which the Commonwealth 

relies. Accordingly, we find Prendes’ application of Lesko is no longer 

binding authority and reject the Commonwealth’s assertion that the manifest 

injustice standard be applied to this case simply because Appellant entered 

into a negotiated guilty plea. Even if the higher standard of manifest 

injustice applied, Appellant would not have been able to meet it.
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Insofar as Appellant argues that his trial counsel rendered ineffective 

assistance, we decline to consider the ineffectiveness claim at this juncture 

based on our Supreme Court’s decision in Commonwealth v. Holmes, 79 

A.3d 562 (Pa. 2013). In Holmes, our Supreme Court reaffirmed its prior 

holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent 

certain circumstances, claims of ineffective assistance of counsel should be 

deferred until collateral review under the Post Conviction Relief Act (PCRA). 

See Holmes, 79 A.3d at 576. The specific circumstances under which 

ineffectiveness claims may be addressed on direct appeal are not present in 

the instant case. See id. at 577-78 (holding that the trial court may 

address claims of ineffectiveness where they are “both meritorious and 

apparent from the record so that immediate consideration and relief is 

warranted,” or where the appellant’s request for review of “prolix” 

ineffectiveness claims is “accompanied by a knowing, voluntary, and express 

waiver of PCRA review”). Accordingly, Appellant must raise his 

ineffectiveness claim in a timely-filed PCRA petition. We, however, express 

no opinion on the merits of such effectiveness claim. 

Finally, we reject Appellant’s suggestion that the trial court erred in 

declining to allow him an opportunity to be heard on his pre-sentence 

motion to withdraw the guilty plea. Our review of the guilty plea hearing 

transcript reveals that Appellant’s contention lacks merit. Specifically, the 

trial court asked Appellant: “Is there anything else you want to say?” N.T. 

Sentencing, 6/12/15, at 4. Appellant replied: “I don’t understand how I’m 
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being forced into doing this when this is not what I really wanted to do. I 

explained that to [trial counsel] before then, before you even were the 

judge. Even then we didn’t see eye to eye. We never seen eye to eye.” Id.

at 4-5. The trial court then again asked Appellant: “Is there anything else?” 

Id. at 5. Appellant did not respond. Accordingly, as the guilty plea hearing 

transcript indicates, Appellant indeed was provided an opportunity be heard 

in connection with his pre-sentence motion to withdraw the guilty plea. 

Judgment of sentence affirmed.

Judge Solano joins this memorandum.

Justice Stevens files a concurring and dissenting statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2016