J-S45026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

ANTHONY ALVES

Appellant No. 1375 EDA 2022

Appeal from the Judgment of Sentence Entered April 22, 2022

In the Court of Common Pleas of Monroe County

Criminal Division at No.: CP-45-CR-0001127-2020

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 28, 2023

Appellant, Anthony Alves, appeals from his judgment of sentence of 

fourteen to thirty-six months’ imprisonment following his guilty plea to 

possession with intent to deliver marijuana, 75 P.S. § 780-113(a)(30). 

Appellant argues that the court abused its discretion by denying his motion to 

withdraw his guilty plea. We affirm.

On February 26, 2020, Appellant was arrested for possession with intent 

to distribute heroin, possession with intent to distribute marijuana and related 

offenses following a search of a residence in which he resided with his 

girlfriend, Virginia Elliot, who owned the residence. On September 10, 2021, 

Appellant pled guilty to possession with intent to distribute marijuana in 

consideration for withdrawal of all other charges. Appellant and the 

Commonwealth did not agree on the length of his sentence. On November 

10, 2021, Appellant filed a motion to withdraw his guilty plea, averring simply 
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that he was “innocent of the charge.” Motion To Withdraw Guilty Plea, 

11/10/21, at ¶ 3. On March 8, 2022, following an evidentiary hearing, the 

court denied Appellant’s motion. On April 22, 2022, the court imposed a 

sentence of fourteen to thirty-six months’ imprisonment, a slightly higher 

minimum sentence than the Commonwealth requested.

1 This timely appeal 

followed. Both Appellant and the court complied with Pa.R.A.P. 1925.

Appellant raises a single issue in this appeal, “Did the trial court abuse 

its discretion by not allowing Appellant to withdraw his plea prior to 

sentencing, when such discretion is to be administered liberally in favor of the 

accused where there was a plausible assertion of innocence?” Appellant’s Brief 

at 4. Appellant argues that “another person” (his brother) “had access to the 

garage and the drugs found could have belonged to [him].” Appellant’s Brief 

at 10. 

The following considerations govern the decision to grant or deny a 

presentence motion to withdraw a plea:

(1) “there is no absolute right to withdraw a guilty plea;” (2) “trial 

courts have discretion in determining whether a withdrawal 

request will be granted;” (3) “such discretion is to be administered 

liberally in favor of the accused;” and (4) “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.”

____________________________________________

1 The Commonwealth asked for a sentence of ten to thirty-six months’ 

imprisonment. N.T., 4/22/22, at 3.
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Commonwealth v. Norton, 201 A.3d 112, 116 (Pa. 2019) (quoting 

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015)). A fair

and just reason exists where the defendant makes claim of innocence that is 

at least plausible. Carrasquillo, 115 A.3d at 1292. “Stated more broadly, 

the proper inquiry on consideration of such a withdrawal motion is whether 

the accused has made some colorable demonstration, under the 

circumstances, such that permitting withdrawal of the plea would promote 

fairness and justice.” Norton, 201 A.3d at 120-21. “[T]rial courts have 

discretion to assess the plausibility of claims of innocence.” Id. at 121; see 

also Pa.R.Crim.P. 591 (“at any time before the imposition of sentence, the 

court may, in its discretion, permit, upon motion of the defendant [...] the 

withdrawal of a plea of guilty or nolo contendere and the substitution of a plea 

of not guilty”).

In Carrasquillo, the Supreme Court held that the court properly denied 

the defendant’s motion to withdraw his guilty plea where the defendant 

claimed in support of the motion that he was framed by the Central 

Intelligence Agency. Id., 115 A.3d at 1287. The defendant’s statements, 

compared against the Commonwealth’s strong proffer of evidence at the plea 

hearing, rendered the assertion of innocence implausible. Id. at 1298. 

Similarly, the denial of relief in the companion case to Carrasquillo was 

proper where the defendant asserted his innocence but offered no evidence.

Commonwealth v. Hvizda, 116 A.3d 1103, 1104, 1107 (Pa. 2015).
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In Commonwealth v. Islas, 156 A.3d 1185 (Pa. Super. 2017), this 

Court distilled four “guideposts” from Carrasquillo:

First, the Court squarely rejected a per se approach in which any 

presentence motion to withdraw a guilty plea based on a claim of 

innocence must be granted. Second, nothing in Carrasquillo

suggests that the Court intended the pendulum to swing fully in 

the other direction—from automatic grants to automatic denials of 

pre-sentence motions to withdraw. Indeed, the Court expressly 

reaffirmed the liberal-allowance language in [Commonwealth 

v.] Forbes, [299 A.2d 268 (Pa. 1973),] which continues to stand 

in sharp contrast to the “manifest injustice” standard for postsentence motions to withdraw. Third, the Court directed trial 

courts to distinguish between “mere, bare, or non-colorable” 

assertions of innocence on the one hand and those that are “at 

least plausible” on the other. Fourth, as trial courts undertake the 

task of making that distinction, both the timing and the nature of 

the innocence claim, along with the relationship of that claim to 

the strength of the government’s evidence, are relevant. In 

addition, in his concurring opinion in Carrasquillo, then-Justice 

Stevens added that trial courts assessing the credibility of an 

accused’s assertion of innocence should also consider any “ulterior 

or illicit motive” for the motion to withdraw.

Id. at 1190-91.

In this case, the court properly determined that Appellant’s claim of 

innocence is completely implausible. Appellant claims in his brief that his 

brother had access to the garage where the marijuana was found. Therefore, 

Appellant continues, he could have presented the defense during trial that the 

drugs belonged to his brother instead of him. The evidence presented during 

Appellant’s motion to withdraw his guilty plea belies this argument. 

Detective Scarfo of the Pocono Mountain Regional Police Department 

testified that Officer Michaels of the same department advised that Virginia 

Elliot reported that she had discovered illegal narcotics in her residence. N.T., 
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3/8/22, at 13-14. When Detective Scarfo arrived at Elliot’s residence, she 

escorted him and Officer Michaels to the bedroom, where she showed them a 

shoe box on a shelf that contained several packets of packaged heroin in a 

Ziploc bag that also had rice in it. Id. at 17. She stated that only Appellant 

and her had access to the bedroom. Id. She then led the two men to the 

garage and showed them a bag about the size of a basketball. Id. at 17. 

Inside the bag were multiple smaller bags containing marijuana. Elliot advised 

that Appellant frequented the garage. Id. 

Detective Scarfo then interviewed Appellant and asked where the drugs 

were located inside the home, and “[Appellant] presented to me where they 

were located before I told him, therefore, had knowledge of the locations of 

said drugs, and then he did admit those drugs were his.” Id. at 20. Detective 

Scarfo testified that Elliot said either her brother or Appellant’s brother had 

access to the house but not the garage. Id. at 15-16. The evidence thus 

demonstrates that (1) Appellant’s brother did not have access to the garage 

where the marijuana was located, (2) Appellant had access to the garage; and 

(3) Appellant admitted that the marijuana found in the garage was his. 

Appellant’s assertion of innocence is implausible when compared to the 

Commonwealth’s strong proffer of guilt during the evidentiary hearing. The 

court thus acted within its discretion by denying Appellant’s motion to

withdraw his guilty plea. Norton, 201 A.3d at 120-21.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/28/2023