J-S54025-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PEDRO EWING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 225 MDA 2019

Appeal from the Judgment of Sentence Entered January 4, 2019

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0004338-2015

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 26, 2019

Pedro Ewing appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Luzerne County, following his conviction for two 

counts of involuntary deviate sexual intercourse (IDSI),

1 statutory sexual 

assault,2 corruption of minors,3 and unlawful contact with minors.4 Ewing 

argues that the trial court abused its discretion when it denied his motion to 

withdraw his no contest plea. After careful review, we affirm.

On September 12, 2015, Ewing brought A.W., a 14 year old autistic girl, 

to his room. While in the room, Ewing talked with A.W. and gave her drugs. 

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1 18 Pa.C.S. § 3123(a)(7).

2 18 Pa.C.S. § 3122.1(b).

3 18 Pa.C.S. § 6301(a)(1)(i).

4 18 Pa.C.S. § 6318(a)(1).
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He then attempted to have vaginal intercourse with A.W. When he was unable 

to have vaginal intercourse, he proceeded to have oral intercourse with A.W. 

and forced A.W. to engage in oral intercourse with him.

On September 14, 2015, Ewing was charged with the above-mentioned

crimes. On April 18, 2016, as part of a plea agreement, Ewing pled guilty to 

unlawful contact with minors and the Commonwealth withdrew the remaining 

charges. However, prior to sentencing, Ewing requested that the trial court 

allow him to withdraw his guilty plea. The trial court granted the request on 

October 28, 2016, and the case was set for trial. On May 17, 2018, the 

Commonwealth amended the information to include the original charges.

Ewing was called for trial on October 29, 2018. On that day, prior to 

jury selection, Ewing pled no contest to all charges, which the court accepted 

and subsequently scheduled sentencing for January 4, 2019. On January 2, 

2019, Ewing filed a pro se motion to withdraw his no contest plea. The court 

allowed Ewing to make the same motion orally through his counsel at the 

sentencing hearing. The court denied Ewing’s motion and sentenced him to 

an aggregate term of 18 to 36 years’ incarceration. Ewing improperly filed a 

post-sentence motion and notice of appeal pro se. On February 4, 2019, 

Ewing’s counsel properly filed this timely appeal.5

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5

In its Rule 1925(a) opinion, the trial court argued that this appeal should be 

quashed as premature. The trial court noted that a sexually violent predator 

(SVP) hearing had not occurred and then held that the order was not final 

until Ewing has an SVP determination. This Court has previously found that, 
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Ewing’s sole issue on appeal is that the trial court abused its discretion 

when it denied his motion to withdraw his no contest plea. Ewing argues that 

the trial court did not give him an opportunity to substantiate his assertion of 

innocence.

“The effect of a nolo contendere plea in Pennsylvania . . . when accepted 

. . . is an implied confession of guilt only, and cannot be used against the 

defendant as an admission in any civil suit for the same act.” Eisenberg v. 

Commonwealth, 516 A.2d 333, 335 (Pa. 1986) (citing Commonwealth v. 

Ferguson, 44 Pa. Super. 626, 628 (1910)) (internal quotation marks 

omitted). “[I]n terms of its effect upon a case, a plea of nolo contendere is 

treated the same as a guilty plea.” Commonwealth v. Miller, 748 A.2d 733, 

735 (Pa. Super. 2000). We analyze a trial court’s denial of a pre-sentence 

motion to withdraw either plea using the same standard. See 

Commonwealth v. Norton, 201 A.3d 112, 122 (Pa. 2019). 

“A trial court’s decision regarding whether to permit a guilty plea to be 

withdrawn should not be upset absent an abuse of discretion. An abuse of 

discretion exists when a defendant shows any ‘fair and just’ reasons for 

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when a defendant waives a pre-sentence SVP determination, a judgment of 

sentence is not a final order until there is an SVP determination. See 

Commonwealth v. Schrader, 141 A.3d 558 (Pa. Super. 2016). However, 

in light of our recent ruling that SVP hearings are unconstitutional using the 

“clear and convincing” standard, there is currently no statutory mechanism to 

make an SVP determination. See Commonwealth v. Butler, 173 A.3d 1212, 

1218 (Pa. Super. 2017) (appeal granted 190 A.3d 581 (Pa. 2018)). Thus, the 

judgement of sentence was the final order in this case. See 42 Pa.C.S. § 

742.
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withdrawing his plea absent ‘substantial prejudice’ to the Commonwealth.” 

Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa. Super. 2011) (quoting 

Commonwealth v. Prysock, 972 A.2d 539, 541 (Pa. Super. 2009); see also 

Commonwealth v. Anthony, 475 A.2d 1303, 1308 (Pa. 1984)). “[A]n 

assertion of innocence may constitute a fair and just reason for the presentence withdrawal of a guilty plea.” Commonwealth v. Miller, 639 A.2d 

815, 816-17 (Pa. Super. 1994); see Commonwealth v. Forbes, 299 A.2d 

268, 271 (Pa. 1973). However, a mere assertion of innocence is not sufficient. 

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

a defendant seeking to withdraw must demonstrate that his claim of innocence 

is plausible and granting the withdrawal will promote fairness and justice. 

Commonwealth v. Norton, 201 A.3d 112, 120-21 (Pa. 2019).

Here, Ewing claimed that he was not guilty of the IDSI charges and that 

the unlawful contact with a minor charge was a “cover-up.” N.T. Trial, 1/4/19, 

at 4. He did not claim he was innocent of the remaining charges. In his 

attempt to show his claim of innocence was plausible, Ewing argued that he 

did not meet A.W. until a day after the crimes occurred, but he admitted he 

bore “some guilt in this.” Id. at 5. Ewing’s argument is implausible because 

he claims he was not present when the crimes occurred, but he did commit 

other crimes involving A.W. at the same time. See Norton, 201 A.3d at 120-

21 (requiring, inter alia, claim of innocence be plausible). Furthermore, Ewing 

waited until two days before sentencing to change his plea. The trial court 

noted that Ewing had three years to decide whether to proceed to trial or enter 
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a plea, and the court concluded that his innocence claim was “nothing more 

than an attempt to further delay the imposition of justice.” Trial Court 

Opinion, 3/22/19, at 5. We agree. After our review, we are unable to find 

that the trial abused its discretion. See Pardo, supra.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/26/2019