[J-72A-2014] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFER Y, STEVENS, JJ.

COMMONWEALTH OF PENNSYLVANIA, Appellant

v.

JOSE A. CARRASQUILLO, Appellee : : : : : : : : : : : : : : No. 7 EAP 2014 Appeal from the judgment of the Superior Court at No. 1045 EDA 2011, Dated October 8, 2013, Vacating the Judgment of Sentence of the Philadelphia County Court of Common Pleas, Criminal Division,at Nos. CP-51-CR-0009652-2009 and CP51-CR-0009653-2009, Dated November 30, 2010, and Remanding 78 A.3d 1120 (Pa. Super. 2013) ARGUED: September 10, 2014

OPINION

MR. CHIEF JUSTICE SAYLOR 1 DECIDED: June 15, 2015

In this appeal, we consider the criteria governing th e disposition of a presentence motion to withdraw a guilty plea. Our decision turn s on the conclusion that a bare assertion of innocence is not, in and of itself, a suf ficient reason to require a court to grant such a request. On the morning of June 1, 2009, two girls were sexual ly assaulted by the same man. The first victim, sixteen-year-old C.J., escaped after offensive touching. Elevenyear-old N.O., however, was threatened and lured into an alleyway, where she was brutally raped and sustained severe injuries requiring hospitalization and surgery.

1 This matter was reassigned to this author.[J-72A-2014] - 2

Police investigated and arrested Appellee, Jose A. Carr asquillo, who made inculpatory statements during interrogation. Charges w ere lodged in two separate criminal proceedings, which were later consolidated for trial. After a psychiatric evaluation confirmed that Appellee was competent to be tried, he decided to enter open guilty pleas to various sexual offenses, including rape, as well as other crimes. At the plea colloquy, the Commonwealth proffered t hat the evidence against Appellee included his own statements, identification te stimony from both victims, video surveillance recordings apparently showing Appellee with or in the vicinity of each victim close in time to the assaults, and DNA and fingerprint evidence linking Appellee to the rape of N.O. See N.T., Aug. 11, 2010, at 32-45. The plea court advised Appellee of his pertinent const itutional rights and the implications of waiver. After further explaining tha t Appellee faced possible sentences of life and nine years’ imprisonment, respectively, in the cases relating to N.O. and C.J., the court accepted the pleas and entered verdicts. App ellee was also informed that he could seek to withdraw his guilty plea at any time befo re sentencing and that the court “would have to consider whether or not the reasons for you doing so are fair and necessary, fair and appropriate, compared to the preju dice that that might cause to the Commonwealth’s case and to their witnesses, and particula rly in this case to child witnesses.” Id. at 63. See generally Commonwealth v. Forbes , 450 Pa. 185, 190, 299 A.2d 268, 271 (1973). Three and one-half months later, the court conducted a sentencing hearing. The prosecutor read into evidence a report prepared for th e Sexual Offenders Assessment Board, which described Appellee’s multiple sexually viole nt episodes and concluded that Appellee was a sexually violent predator for the purposes of Megan’s Law. See 42 Pa.C.S. §§9794(c), 9795.4(b) (superseded). The report portrayed Appellee as a cruel[J-72A-2014] - 3

assailant, who “was sexually aroused by acts of violence, d omination, or threats upon the victims” and for whom self-reported rage and anger were secondary motivators. N.T., Nov. 30, 2010, at 49-66. In addition, N.O., her parents, grandmother, teacher, and physician testified to the severe physical and emotional trauma that N.O. had suffered. Among other things, the witnesses stated that memories of the brutal attack continued to affect N.O.’s emotional and psychological well-being. See id. at 73-75, 86-88. In mitigation, Appellee offered expert testimony describ ing neuropsychological impairment affecting his behavior, and a letter from his paternal aunt requesting leniency. See id. at 90-122. After the defense rested, Appellee explained in all ocution that he had pled guilty to spare N.O. suffering, and he therefore expressed surp rise at his portrayal during the sentencing hearing. Appellee also stated that he had e ntered his plea because, absent a polygraph examination, his account would not have b een believed and he would not have received a fair trial. He continued to discuss scenar ios unrelated to the sexual assault of N.O., in which the CIA purportedly had victim ized him by seeking to employ him as an assassin abroad, and where a serpent assertedly appeared and “[t]he Antichrist, he came out of me[.]” See id. at 123. Claiming that he did not commit the assault against N.O. and had been framed, Appellee insi sted that a polygraph test would prove his innocence and asked to withdraw his guil ty plea. See id. at 122-24. The prosecutor responded that permitting Appellee to withdraw his guilty plea would prejudice the Commonwealth, because N.O. had a sense of closure knowing that she did not have to testify; forcing her to testify an d “re-open old wounds . . . would be extremely prejudicial to her well-being.” Id. at 129. The sentencing court denied the motion to withdraw. Once again, Appellee requested an investigation and a polygraph, saying “[i ]f not, you go ahead and give me[J-72A-2014] - 4

life.” Id. at 133. Sentencing proceeded, and Appellee received an aggregate term of incarceration of 30 to 66 years. Upon Appellee’s appeal, the sentencing court issued an o pinion setting forth its
rationale. See Commonwealth v. Carrasquillo , Nos. CP-51-CR-0009652-2009 & CP51-CR-0009653-2009, slip op. at 9 (C.P. Phila. Dec. 29, 2011). Initially, the co urt reiterated that the grant or denial of a motion to withdraw is discretionary in the trial court at any time before sentence imposition and that defendants have no absolute right to the requested relief. See id. (citing Pa.R.Crim.P. 591(A)); see also Forbes , 450 Pa. at 190, 299 A.2d at 271; accord Commonwealth v. Randolph , 553 Pa. 224, 228-29, 718 A.2d 1242, 1244 (1998). The court recognized, however , the directive of this Court that such discretion should be exercised liberally in defendant s’ favor. See Forbes , 450 Pa. at 190, 299 A.2d at 271; accord Commonwealth v. Santos , 450 Pa. 492, 494-95, 301 A.2d 829, 830 (1973) (“The trial courts in exercising t heir discretion must recognize that ‘before judgment, the court should show solicitude for a defendant who wishes to undo a waiver of all constitutional rights that surround the right to trial -- perhaps the most devastating waiver possible under our Constitution.’” ( quoting, indirectly, Dukes v. Warden, Conn. State Prison , 406 U.S. 250, 258, 92 S. Ct. 1551, 1555 (1972) (S tewart, J., concurring))). Such principles, the court noted, were distilled by th is Court in Forbes into the governing requirement that a presentence motion to wi thdraw a guilty plea should be granted if supported by a fair and just reason and sub stantial prejudice will not inure to the Commonwealth. See Forbes , 450 Pa. at 190-91, 299 A.2d at 271 (referencing various federal authorities and secondary materials). Nevertheless, in the sentencing court’s view, denial is appropriate where the reasons o ffered by a defendant are belied[J-72A-2014] - 5

by the record. See Carrasquillo , Nos. CP-51-CR-0009652-2009, et al. , slip op. at 9 (citing, inter alia , Commonwealth v. Tennison , 969 A.2d 572, 578 (Pa. Super. 2009)). As applied to the present circumstances, the sentencing cour t reasoned that Appellee’s claim of innocence -- premised in part on an explanation that he had been framed in an elaborate scheme orchestrated by the Centr al Intelligence Agency and conditioned upon a polygraph test -- was implausible, in sincere, and “nothing more than an attempt to manipulate the justice system” by introd ucing a belated competencybased defense. Id. at 10. The court stressed that Appellee asserted his innocence nearly four months after entering his guilty plea and only minutes before sentencing, timing which also diminished his credibility. In the sen tencing court’s view, rather than a good-faith advancement of innocence, Appellee’s “allocu tion was a guilty, shamed reaction to harsh testimony at the sentencing hearing, in which he heard himself described as a ‘monster,’ ‘pedophile,’ and ‘rapist’ by t he victim and her family as they recounted the suffering and anguish he inflicted upon them.” Id. at 11. Finally, the court found that the Commonwealth would be substantially p rejudiced, because withdrawal of the plea would place “the Commonwealth in the dilemm a of reopening the wounds of a healing child or withdrawing its prosecution.” Id. at 13 (footnote and citation omitted). On appeal, a divided en banc panel of the Superior Court reversed, holding that the trial court abused its discretion in denying Appelle e’s request to withdraw his guilty plea. See Commonwealth v. Carrasquillo , 78 A.3d 1120, 1131 (Pa. Super. 2013). 2 In terms of the the fair-and-just criterion deriving from Forbes , the Superior Court majority acknowledged that Appellee had made “fantastical and ou tlandish claims during his sentencing hearing.” Id. at 1126. The majority nonetheless found Appellee’s cla im of

2 En banc

consideration by the intermediate appellate court occu rred on reargument, after a three-judge panel initially had reversed in a memorandum decision.[J-72A-2014] - 6

innocence to be controlling, stating that “our law doe s not (contrary to the Commonwealth’s suggestion) require some quantum of ‘rat ional support’ as a prerequisite for a plea withdrawal.” Id. Along these lines, the majority indicated:

We find no basis in precedent to authorize trial courts t o import a rationality test or to examine the clarity o r articulateness of movants’ words in these circumstances. We are unprepared to bar an otherwise lawful motion because the language used includes not only a clear assertion of innocence, but also outlandish verbiage an d extraneous references. Id. at 1127 (footnote omitted). The majority next refused to consider the strength of the Commonwealth’s evidence against Appellee, as it found this to have no bearing on the dispositive innocence claim. See id. at 1127-28 (quoting Commonwealth v. Katonka , 33 A.3d 44, 49-50 (Pa. Super. 2011) ( en banc )). Instead, the majority reinforced that “[w]e have made it clear that, in assessing a defendant’s presentence petition to withdraw a guilty plea, trial courts are ‘not permitted to make a deter mination regarding the sincerity of [defendants’] unambiguous claims of innocence.’” Id. at 1128 (quoting Commonwealth v. Unangst , 71 A.3d 1017, 1022 (Pa. Super. 2013)). Accordingly , in the majority’s view, an unambiguous assertion of innocence -- regardless of i ts rationality, clarity, sincerity, or plausibility -- was sufficient to warrant withdrawal

. In terms of the finding that Appellee had an ulteri or motive in that he was attempting to manipulate the process, the Superior Co urt majority found no supportive
evidence. See id. On this point, the majority quoted from Unangst in its rejection of a
similar contention:

[A]ny time a defendant moves to withdraw a guilty ple a prior to sentencing, he could be accused of engaging in a dila tory tactic to avoid sentencing. Thus, if we were to permit this type of reasoning to defeat a presentence motion to[J-72A-2014] - 7 withdraw, we would be ignoring the clear pronouncemen ts from our Supreme Court in Forbes and Randolph

. Id. (quoting Unangst , 71 A.3d at 1022); accord id. (positing that the Commonwealth had offered no evidence that Appellee “asserted his innocen ce as a pretext, or as a ploy to game the system”). The majority also held that the trial court had abu sed its discretion in finding that withdrawal of the plea would result in substantial pr ejudice to the Commonwealth. Quoting Commonwealth v. Gordy , 73 A.3d 620 (Pa. Super. 2013), it explained that “prejudice is about the Commonwealth’s ability to try its case, not about the personal inconvenience to complainants unless that inconvenience so mehow impairs the Commonwealth’s prosecution.” Carrasquillo , 78 A.3d at 1129 (quoting Gordy , 73 A.3d at 624 (citation omitted)); cf. Commonwealth v. Kirsch , 930 A.2d 1282, 1286 (Pa. Super. 2007) (“[P]rejudice cannot be equated with the Common wealth being made to do something it was already obligated to do prior to the entry of the plea.”). Thus, according to the majority, the Commonwealth’s interest in shielding N.O. from testifying was insufficient as a matter of law to establish prejudice , because withdrawal meant only that the Commonwealth would have to try the case and present N.O. as a witness, which it was already obliged to do before the plea. See Carrasquillo , 78 A.3d at 1129. Judge Gantman concurred in the result without opinion , while Judge Mundy, joined by then-President Judge Bender and Judge Panel la, dissented. The dissent reasoned that the majority accorded too much weight to Appellee’s innocence claim; instead, the dissent posited that the entire exchange cast a different light on the assertion. In this respect, the dissenting judges viewed Appellee’s claim as conditional, given that various of Appellee’s statements suggested tha t it was meant to be dependent on the affordance of a polygraph examinat ion. The dissent would have held that such a conditional invocation was not a fair and j ust reason to support withdrawal of[J-72A-2014] - 8

the guilty plea. See id. at 1132-36 (Mundy, J., dissenting, joined by Bender, P.J. and Panella, J.). 3 The Commonwealth petitioned for allowance of appeal . We accepted review, inter alia , to clarify whether the common pleas courts must accept a bare assertion of innocence as a fair and just reason for withdrawal. See Commonwealth v. Carrasquillo , 624 Pa. 503, 86 A.3d 830 (2014) ( per curiam ). Presently, the Commonwealth criticizes the Superior Co urt’s holding as being fundamentally inconsistent with the discretion invested i n sentencing courts. See Brief for Appellant at 12 (“The Superior Court’s inflexibl e rule treats a plea of guilty as a meaningless formality, revocable at the defendant’s whi m upon utterance of magic words, and employable by him to manipulate or frustr ate the justice system.”); accord United States v. Barker , 514 F.2d 208, 221 (D.C. Cir. 1975) (“Were mere asse rtion of legal innocence always a sufficient condition for withdr awal, withdrawal would effectively become an automatic right.”); State v. Smullen , 571 A.2d 1305, 1309 (N.J. 1990) (“Liberality in exercising discretion does not mean an a bdication of all discretion.” (quoting State v. Huntley , 322 A.2d 177, 179 (N.J. Super. 1974)). In the Commonwealth’s view, the courts of common pleas should be afforded latitude to evaluate the sincerity and plausibility of the justifica tion for withdrawing a guilty plea offered by an accused. See, e.g. , Brief for Appellant at 21 (“A court exercising discretion must necessarily be entitled to decide whethe r a purported profession of innocence is legitimate, or it is instead an empty demon stration made in an effort to create delay or disrupt the prosecution.”). The Common wealth believes that such an

3 The dissenting judges did not recognize that the passag e of the discussion between Appellee and the sentencing court which they regarded a s “the most telling” of Appellee’s intentions ensued after the court had render ed its ruling denying withdrawal. See N.T., Nov. 30, 2010, at 132-33.[J-72A-2014] - 9

approach reconciles with Forbes , in that liberality should extend to plausible claims of innocence, which would not be lightly discredited. See id. at 22. It is the Commonwealth’s position that the inflexible rule refl ected in the Superior Court’s decisions “degrade[s] the otherwise serious act of pleading guilty[.]” Id. at 18, 22 (quoting United States v. Hyde , 520 U.S. 670, 677, 117 S. Ct. 1630, 1634 (1997)). The Commonwealth traces what it views as a perversion o f the Forbes standard
to an en banc

decision of the Superior Court in Commonwealth v. Cole , 387 Pa. Super. 328, 564 A.2d 203 (1989). See id. at 333-34, 564 A.2d at 205 (stating that “where a defendant has asserted innocence . . . it has been he ld to be an abuse of discretion for a trial court to deny a pre-sentence petition for wit hdrawal of a guilty plea.”). 4 The Commonwealth highlights, however, that concerns with a blanket approach were registered at that time of Cole ’s issuance and going forward. See id. at 338, 564 A.2d at 207-08 (McEwen, J., concurring) (suggesting that “[t]h e admonition of Forbes [and its progeny] that a presentence request to withdraw a guil ty plea be ‘construed liberally’ in favor of the accused, is not a direction to blithely i gnore the obvious, or to heedlessly abandon reason”); id. at 339, 564 A.2d at 208 (Kelly, J., concurring) (cauti oning that treating a claim of innocence as a per se basis for withdrawal would require that “a disingenuous incantation . . . by judicial alchemy would become magic words with which to evade the legitimate requirement of ‘just cause’ fo r withdrawal”). The Commonwealth complains that subsequent decisions of the intermediate co urt have followed the lead of
the Cole majority to erroneously equate the mere assertion of innocence with a fair-andjust reason under Forbes

. See Brief for Appellant at 19 (citing Commonwealth v. Rish ,

4 Earlier decisions of the intermediate court also are re flective of a bright-line approach. See, e.g. , Commonwealth v. Boofer , 248 Pa. Super. 431, 433, 375 A.2d 173, 174 (1977) (“An assertion of innocence is a ‘fair and just re ason’ for permitting withdrawal of a guilty plea.” (citation omitted)).[J-72A-2014] - 10

414 Pa. Super. 220, 224, 606 A.2d 946, 947 (1992), and Commonwealth v. Iseley , 419 Pa. Super. 364, 374, 615 A.2d 408, 413 (1992)). Al though the Commonwealth references a few cases as taking a contrary view, 5 it observes that the per se approach became entrenched in and after the recent decision of a n en banc panel in Katonka , 33 A.3d at 50 & n.2. This, the Commonwealth asserts, is m anifestly contrary to the weight of authority in other jurisdictions and warrants correcti on. 6 Appellee, in his brief, embraces the per se approach to innocence claims, arguing that it derives specifically from Forbes , and has been implemented by this Court
in Commonwealth v. Woods , 452 Pa. 546, 550-51, 307 A.2d 880, 881-82 (1973), and in a strong admonishment of the Superior Court’s departur es in Randolph , 553 Pa. at 230, 718 A.2d at 1244-55 (criticizing the intermediate cou rt’s refusal to give weight to an innocence assertion as a “cavalier disregard of the Forbes standard”). Appellee

5 See Brief for Appellant at 19 n.5 (citing Tennison , 969 A.2d at 575 (indicating that “a fair and just reason has to be a credible reason”), an d Commonwealth v. Miller , 432 Pa. Super. 619, 628-29, 639 A.2d 815, 819 (1994) (uphol ding a common pleas court’s refusal to permit withdrawal of a plea, in part, bec ause the defendant’s “alleged assertion of innocence rings hollow”)).

6 The following decisions exemplify the proposition that a mere, bare, or non-colorable assertion of innocence is insufficient, in and of itself, to support withdrawal of a plea: United States v. Buholtz , 562 Fed. Appx. 213, 214 (5th Cir. 2014); United States v. Shumaker

, 475 Fed. Appx. 817, 821 (3d Cir. 2012) (quoting United States v. Jones , 336 F.3d 245, 252 (3d Cir. 2003)); United States v. Gonzalez , 647 F.3d 41, 53 (2d Cir. 2011); United States v. Reid , 387 Fed. Appx. 392, 394 (4th Cir. 2010); United States v. Goodson , 569 F.3d 379, 383 (8th Cir. 2009); United States v. Wolf , 44 Fed. Appx. 16, 19 (7th Cir. 2002); Everard v. United States , 102 F.3d 763, 766 (6th Cir. 1996); Barker , 514 F.2d at 221; State v. Munroe , 45 A.3d 348, 356 (N.J. 2012); White v. United States , 863 A.2d 839, 842 (D.C. 2004). See generally Thomas P. Reilly, Note, Now I’m Guilty, Now I’m Not: The Automatic Right to Pre-Sentence Guil ty Plea Withdrawals in Pennsylvania Since Commonwealth v. Forbes , 59 V ILL

. L. R EV . 305, 320-30 & nn. 85- 138 (2014) (collecting cases) (offering a comparison betwe en Pennsylvania cases governing presentence plea withdrawal with those of o ther jurisdictions).[J-72A-2014] - 11

stresses that the intermediate court took heed of Randolph by effectuating the per se approach to innocence claims in a series of ensuing decisio ns. See Brief for Appellee at 14 (citing Gordy , 73 A.3d at 629, Unangst , 71 A.3d at 1021, Commonwealth v. Pardo , 35 A.3d 1223, 1230 (Pa. Super. 2011), Katonka , 33 A.3d at 50 & n.2, Kirsch , 930 A.2d at 1285-86, Commonwealth v. Goodenow , 741 A.2d 783, 787 (Pa. Super. 1999), Commonwealth v. Hutchins , 453 Pa. Super. 209, 212-13, 683 A.2d 674, 676 (19 96),
Rish , 414 Pa. Super. at 224, 606 A.2d at 947, and Cole , 387 Pa. Super. at 333-34, 564 A.2d at 205). While Appellee recognizes the bright-l ine nature of this approach, he emphasizes that relief is not “automatic,” since the commo n pleas court may still consider prejudice to the Commonwealth. See, e.g. , Katona , 33 A.3d at 50 (remanding for such a prejudice assessment). According to Appellee, requiring the accused to offer evidence of the sincerity or plausibility of his assertion contravenes the liberality required by Forbes and unfairly shifts the burden of proof from the prosecution onto t he defendant, thereby impairing the defendant’s constitutional rights to a fair trial and t o counsel. Along these lines, Appellee suggests that allowance for credibility judgmen ts will yield inconsistent results, particularly since “intent to delay or manipulate the prosecution can be alleged in every single instance of a defendant moving to withdraw his g uilty plea.” Brief for Appellee at 10; accord Unangst , 71 A.3d at 1022 (“[I]f we were to permit this type of reasoning to defeat a presentence motion to withdraw, we would b e ignoring the clear pronouncements from our Supreme Court in Forbes and Randolph .”). 7 Although the clear weight of the federal authority is against him, see supra note 6, Appellee asserts

7 In any event, Appellee cites the Superior Court’s Tennison decision as creating an exception that allows an innocence assertion to be discred ited, but only where the record plainly demonstrates an ulterior motive (and n ot where such motive must be inferred). See Brief for Appellee at 22 (citing Tennison , 969 A.2d at 578).[J-72A-2014] - 12

that we should not follow the lead of the federal cou rts, since the Federal Rules of Criminal Procedure establish a different system for when and how pleas may be withdrawn, encompassing allowance of withdrawal for “a ny reason or no reason” prior to acceptance of the plea. See Brief for Appellee at 20 n.6 (“A more strict interpr etation of the ‘fair and just’ standard makes more sense under the federal rules because of the additional procedural protection afforded to withdra wal of pleas prior to their being accepted.” (citing Fed.R.Crim.P. 11(d))). Appellee also posits that there are practical concerns attending movement away from a bright-line approach:

[I]t raises questions as to what sort of evidence would be admissible in support of the motion (offer of proof, documentation, testimonial), what standard would be use d to weigh the evidence (prima facie, preponderance of th e evidence, beyond a reasonable doubt), and how wouldcourts handle cases involving alternative defenses (selfdefense, diminished capacity, insanity). The hearing on the motion to withdraw would become a mini-trial and wo uld open the door to vast amounts of new appellate litiga tion. Id. at 28. Appellee cautions against “blur[ring] the lin e” between pre- and post-sentence
withdrawal standards. Id. at 28. The issues posed, involving the application of the Forbes standard, are questions of law. Accordingly, our review of the Superior Cour t’s decision is plenary. See Commonwealth v. Batts , 620 Pa. 115, 127, 66 A.3d 286, 293 (2013). As amply reflected above, this Court’s Forbes decision reflects that: there is no absolute right to withdraw a guilty plea; 8 trial courts have discretion in determining

8 A guilty plea implicates the waiver of important con stitutional rights attending a defendant’s trial rights. See, e.g. , Brady v. United States , 397 U.S. 742, 748, 90 S. Ct. 1463, 1468-69 (1970) (explaining that a “plea is mor e than an admission of past conduct; it is the defendant's consent that judgment of c onviction may be entered (continuedN)[J-72A-2014] - 13

whether a withdrawal request will be granted; such di scretion is to be administered liberally in favor of the accused; and any demonstratio n 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 , 450 Pa. at 190-91, 299 A.2d at 271. The perfunctory fashion in which these principles were appl ied to the circumstances presented in Forbes , as well as in the ensuing decision in Woods , 452 Pa. at 546, 307 A.2d at 880, also lent the impression that this Court had required acceptance of a bare assertion of innocence as a fair-and-just reason. See, e.g. , Forbes , 450 Pa. at 192, 299 A.2d at 272 (“Obviously, [the] appellant, by [his] asse rtion of innocence – so early in the proceedings[, i.e. , one month after the initial tender of a plea,] – offered a ‘fair and just’ reason for withdrawal of the plea.”).
Both Forbes and Woods, however, are distinguishable on their facts, particularly in terms of the timing of the innocence claim. In Forbes , the Court noted that the claim was made about one month after the plea tender. See id. In Woods , albeit that the innocence declaration was made over a year after the pl ea was accepted, this Court highlighted its occurrence nine months before sentencing. See Woods , 452 Pa. at 550- 51, 307 A.2d at 882. Nevertheless, in light of the Randolph Court’s forceful emphasis upon such an innocence declaration, and its concomitant rej ection of the common pleas and intermediate courts’ reliance on the defendant’s pr evious concessions to guilt, see Randolph , 553 Pa. at 230-31, 718 A.2d at 1244-45, we cannot criticize the intermediate court for its understanding that credibility judgments r elative to innocence were foreclosed. See , e.g. , Katonka , 33 A.3d at 49 (citing Randolph for the proposition that

(Ncontinued) without a trial -- a waiver of his right to trial bef ore a jury or a judge”); Commonwealth v. Culbreath , 439 Pa. 21, 26, 264 A.2d 643, 645 (1970) (observi ng that, by pleading guilty, a defendant waives non-jurisdictional defects and defen ses).[J-72A-2014] - 14

this Court had condemned credibility determinations as t o a defendant’s innocence in the plea withdrawal context). In other words, we ackno wledge the legitimate perception of a per se rule arising from this Court’s decisions. As with other such bright-line rules, however, the pr inciple is subject to the axiom that the holding of a decision is to be determined accor ding to the facts under consideration, see, e.g. , Oliver v. City of Pittsburgh , 608 Pa. 386, 395, 11 A.3d 960, 966 (2011), and continuing evaluation as experience with n ew fact patterns offers further insight into the wisdom of a per se approach. Indeed, we recently observed, that, “for better or for worse, the experience with broadly stated prophylactic rules often has been that they cannot be sustained on their original terms. ” Commonwealth v. Henderson , 616 Pa. 277, 287, 47 A.3d 797, 803 (2012). Presently, we are persuaded by the approach of other jurisdictions which require that a defendant’s innocence claim must be at least pla usible to demonstrate, in and of itself, a fair and just reason for presentence withdra wal of a plea. See supra note 6 (citing cases). More broadly, the proper inquiry on con sideration of such a withdrawal
motion is whether the accused has made some colorable dem onstration, under the circumstances, such that permitting withdrawal of the ple a would promote fairness and justice. The policy of liberality remains extant but h as its limits, consistent with the affordance of a degree of discretion to the common ple as courts. This case, in our view, illustrates why the existing per se approach to innocence claims is unsatisfactory. Here, Appellee’s assertion was first made in sentencing allocution, after the close of the evidentiary record ( which, in any event, was dedicated to a different purpose, since no motion to withdraw ha d been advanced before or during such record’s development). No request was made to reope n the record for an orderly presentation in support of Appellee’s request. Moreove r, the bizarre statements made[J-72A-2014] - 15

by Appellee in association with his declaration of innoce nce wholly undermined its plausibility, particular in light of the Commonwealth ’s strong evidentiary proffer at the plea hearing. In the circumstances, the common pleas court should not have been required to forego sentencing; rather, we find that it acted within its discretion to refuse the attempted withdrawal of the plea. 9 The order of the Superior Court is reversed, and the matter is remanded for reinstatement of the judgment of sentence. Jurisdicti on is relinquished.

Former Chief Justice Castille and former Justice McCaffer y did not participate in the decision of this case. Messrs. Justice Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion. Mr. Justice Stevens files a concurring opinion in which M r. Justice Baer joins.

9 In light of our disposition, above, we do not reach the second issue presented on appeal, which concerns prejudice to the Commonwealth. See Carrasquillo , 624 Pa. at 503, 86 A.3d at 830.