J-S39021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PHOUPHET HOMESOMBATH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 131 MDA 2018

Appeal from the Judgment of Sentence November 10, 2014

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

No(s): CP-35-CR-0003068-2010

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

MEMORANDUM BY MURRAY, J.: FILED AUGUST 07, 2018

Phouphet Homesombath (Appellant) appeals from the trial court’s denial 

of his motion to withdraw guilty plea. Upon review, we affirm.

The trial court summarized the factual and procedural background, 

which has spanned several years, as follows:

Under Docket Number CP-35-CR-0003068-2010, 

[Appellant] was charged with one (1) count of Corrupt 

Organization in violation of 18 Pa. C.S.A. § 911(b)(2), one (1) 

count of Conspiracy - Possession With Intent to Deliver in 

violation of 18 Pa. C.S.A. § 903, two (2) counts of Possession With 

Intent to Deliver in violation of 35 P.S. § 780-113(a)(30), and one 

(1) count of Possession of Drug Paraphernalia in violation of 35 

P.S. § 780-113(a)(32). These charges stemmed from the 

execution of a search warrant by Scranton Police Special

Investigations Division on October 28, 2010, after they received 

information that a package containing a large amount of 

marijuana would be delivered to a residence in Scranton. Dinning,

Affidavit of Probable Cause, October 28, 2010, at p.1. 

On April 11, 2011 [Appellant] entered a guilty to plea to one 

(1) count of Conspiracy and one (1) count of Possession With 
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Intent to Deliver. [Appellant] was represented by Attorney Ernest 

Preate from his Preliminary Hearing through the Guilty Plea.

On August 4, 2011, [Appellant], through his new counsel, 

Matthew Comerford, filed a Motion to Withdraw Guilty Plea. On 

January 6, 2012, following a hearing, this [c]ourt denied 

[Appellant’s] Motion to Withdraw Guilty Plea. In the Order, this 

[c]ourt provided the following reasons for denying [Appellant’s]

Motion, including its finding that the assertion of innocence by 

[Appellant] was not credible and did not amount to a fair and just 

reason, the Commonwealth would suffer substantial prejudice, 

and that under the totality of the circumstances, including the 

numerous continuances of sentencing, that the Motion was merely 

a dilatory tactic. Thereafter, [Appellant] absconded or otherwise 

failed to appear for a period of time.

[Appellant] was subsequently apprehended and sentenced 

on November 10, 2014, to fourteen (14) to twenty-eight (28) 

months followed by four (4) years’ Special Probation on the

Conspiracy charge and thirty (30) to sixty (60) months’

confinement followed by four (4) years’ Special Probation on the 

PWID charge, consecutive; for an aggregate sentence of fortyfour (44) to eighty-eight (88) months’ confinement followed by 

eight (8) years’ Special Probation.

On November 20, 2014, counsel for [Appellant] filed a 

Motion for Reconsideration of Sentence, which was denied by this

[c]ourt on November 21, 2014. No direct appeal was filed.

On December 19, 2014, [Appellant] filed a pro se Petition 

for Post Conviction Relief. Thereafter, Attorney Terrence 

McDonald was appointed as PCRA counsel and supplemented the

PCRA Petition on June 3, 2015, asserting additional claims 

including ineffectiveness against Attorney Matthew Comerford for 

failure to appeal the denial of [Appellant’s] Motion to Withdraw

Guilty Plea or appealing the sentence imposed.

A hearing was held on August 31, 2015, at which time both 

[Appellant] and Attorney Comerford testified that [Appellant]

communicated his request for a direct appeal, but the appeal was 

not filed due to a dispute regarding payment.

On December 14, 2017, this [c]ourt granted the PCRA to 

the extent that it reinstated [Appellant’s] right to direct appeal 
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nunc pro tunc, as the Petition both plead and proved that he was 

denied the opportunity to file a direct appeal.

As such, [Appellant] timely appealed in compliance with this 

[c]ourt’s December 14, 2017, Order reinstating the right to appeal 

nunc pro tunc.

Trial Court Opinion, 3/16/18, at 1-3.

Appellant filed this appeal on January 12, 2018. The trial court ordered 

Appellant to comply with Pa.R.A.P. 1925(b), and Appellant filed his concise 

statement of errors complained of on appeal on February 5, 2015. The trial 

court filed its opinion on March 16, 2018.

Appellant presents a single issue for our review:

Whether the trial court committed an abuse of discretion in 

denying Appellant’s presentence Motion to Withdraw Guilty Plea 

after Appellant provided a fair and just reason for withdrawing his 

plea and no substantial prejudice would befall the 

Commonwealth?

Appellant’s Brief at 4.

We review a trial court’s denial of a pre-sentence request to withdraw a 

guilty plea mindful of the following:

[W]e recognize that at “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). The Supreme Court of Pennsylvania 

recently clarified the standard of review for considering a trial 

court’s decision regarding a defendant’s pre-sentence motion 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.
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Commonwealth v. Carrasquillo, 631 Pa. 692, 115 A.3d 1284, 

1285, 1291–92 (2015) (holding there is no per se rule regarding 

pre-sentence request to withdraw a plea, and bare assertion of 

innocence is not a sufficient reason to require a court to grant 

such request). We will disturb a trial court’s decision on a request 

to withdraw a guilty plea only if we conclude that the trial court 

abused its discretion. Commonwealth v. Gordy, 73 A.3d 620, 

624 (Pa. Super. 2013).

Commonwealth v. Blango, 150 A.3d 45, 47 (Pa. Super. 2016), appeal 

denied, 168 A.3d 1254 (Pa. 2017). “An abuse of discretion is not a mere 

error in judgment but, rather, involves bias, ill will, partiality, prejudice, 

manifest unreasonableness, and/or misapplication of law. By contrast, a 

proper exercise of discretion conforms to the law and is based on the facts of 

record.” Gordy, 73 A.3d at 624 (citation omitted). 

We note that, although it does not impact our disposition, Appellant 

petitioned to withdraw his guilty plea prior to the Pennsylvania Supreme 

Court’s decision in Carrasquillo. Our Supreme Court in Carrasquillo, with

reference to its prior decision in Commonwealth v. Forbes, 299 A.2d 268 

(Pa. 1973), stated “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.” Carrasquillo, 115 A.3d at 1291–1292. The Supreme Court 

observed that the “perfunctory fashion in which these principles were applied 

to the circumstances presented in Forbes, as well as in the ensuing decision 
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in [Commonwealth v.] Woods, 307 A.2d 880 [Pa. 1973)], also lent the 

impression that this Court had required acceptance of a bare assertion of 

innocence as a fair-and-just reason.” Id. at 1292. The Supreme Court then 

specifically held that a bare assertion of innocence is not a sufficient reason 

to require a court to grant such request.

Instantly, Appellant does not argue that he made a bare assertion of 

innocence. Rather, Appellant argues that he presented a fair and just basis 

to support the withdrawal of his guilty plea. He states that he “did not merely 

make a bare claim of innocence, but instead, under oath, he claimed that he 

was innocent of the charges, that he was not found to have drugs on his 

person, did not occupy or own the property where drugs were found, did not 

own the suitcase in which drugs were stored, and informed the court that he 

previously testified under oath that the suitcase with drugs did not belong to 

him.” Appellant’s Brief at 9. Appellant thus asserts that he “plausibly 

demonstrated a fair and just reason for withdrawal of his guilty plea.” Id. 

Appellant further maintains that the Commonwealth failed to demonstrate that 

it would be substantially prejudiced by the withdrawal of his guilty plea.

Conversely, the Commonwealth counters that the trial court, “in its 

discretion, correctly found Appellant had not made a ‘colorable demonstration, 

such that allowing the withdrawal of the plea would promote fairness and 

justice.’” Commonwealth Brief at 11. The Commonwealth additionally asserts 

that it would be “greatly prejudiced” because it allowed two of Appellant’s codefendants to plead guilty, and nolle prossed another co-defendant’s charges,
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after Appellant entered his plea and before Appellant filed his motion to 

withdraw the plea. Id. at 11. The Commonwealth states that as a result, it 

“lost all leverage it had over the co-defendants, placing the Commonwealth in 

a worse place than it would have been in prior to the Appellant pleading 

guilty.” Id.

Our review of the record confirms that on April 6, 2011, Appellant pled 

guilty to conspiracy to commit possession with the intent to deliver, as well as 

possession with intent to deliver.1 Sentencing was scheduled for July 5, 2011. 

Appellant requested a continuance and sentencing was re-scheduled for 

August 9, 2011. On August 2, 2011, Appellant filed another continuance

motion, as well as his motion to withdraw the plea. The trial court held an 

evidentiary hearing on August 16, 2011 and August 19, 2011, when it heard 

argument as well as testimony. 

On January 6, 2012, the trial court denied the motion. The trial court 

concluded that “the facts before this court reveal that based upon the totality 

of the circumstances, [Appellant] did not make a credible assertion of 

innocence and thus did not provide a fair and just reason to withdraw his guilty 

plea prior to sentencing.” Order, 1/6/12, at 2. The trial court explained: 

Appellant’s assertion [of innocence that was] invoked at the 

prospect of being sentenced . . . was anything but credible. 

Indeed, no sooner would the assertion be made than it would be 

completely contradicted by statements admitting guilt at 

[Appellant’s] hearing of August 16, 2011 and August 19, 2011. 

During the hearing, [Appellant] made inconsistent statements 

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1 18 Pa.C.S.A. § 903; 35 P.S. § 780-113(a)(30).
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about his partnership with his co-defendant, Alfred Bachiller, as 

well as their plans to sell marijuana to establish a staffing agency. 

Specifically, [Appellant’s] pre-sentence interviewer, Lisa White,

corroborated [Appellant’s] statements at the time of the extended 

hearing on August 19, 2011. Ms. White testified that [Appellant]

provided facts beyond the affidavit of probable cause during the 

Pre-Sentence interview. She noted that [Appellant] admitted to 

his partnership with Alfred Bachiller and how he planned to fund 

the staffing agency with drug proceeds. As such, this Court finds 

that the statements made by both [Appellant] and Lisa White 

undermine the credibility of [Appellant’s] assertion of innocence 

to the Court.

Specifically, this Court finds that [Appellant’s] petition for 

withdrawal of his guilty plea was pretextual, and merely used as 

a dilatory tactic rather than as a lawful means to assert his 

innocence. See Commonwealth v. Cole, 564 A.2d 203 (Pa. 

Super. 1989) (a criminal defendant will not be permitted to play 

fast and loose with the guilty plea process in order to delay 

prosecution). This Court finds that [Appellant’s] motion is founded 

upon a desire to delay sentencing rather than a sincere assertion 

of innocence. A review of the [Appellant’s] prior record indicates 

that [Appellant] is no stranger to the criminal justice system and 

as such voluntarily, knowingly, and intelligently proffered a guilty 

plea on the date scheduled for his trial. The colloquy indicates that 

[Appellant] was able to understand the questions and answer 

them correctly; and that he both fully understood the questions 

as well as his decision to plead guilty. Accordingly, this Court holds 

that [Appellant’s] assertion of innocence was contrived and falls 

short of a fair and just reason to warrant his withdrawal request.

Moreover, had [Appellant’s] withdrawal request been 

permitted, the Commonwealth would have suffered substantial 

prejudice. In reliance upon [Appellant’s] guilty plea, the

Commonwealth negotiated two guilty pleas with [Appellant’s] coDefendants, Alfred Bachiller and Opal Robinson. Both coDefendants, who were two key witnesses, pled on April 14, 2011 

and were sentenced subsequently thereafter. In further reliance, 

the Commonwealth nolle-prossed the charges against a third coDefendant, Pany Phommachanh. As a result of these events, the 

Commonwealth is placed in a worse position than it would have 

been had trial taken place as scheduled. For example, while the 

three co-defendants are undoubtedly available in a technical 

sense, the reluctance of the three co-defendants to testify in a 
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manner that would cause incarceration of [Appellant] is evident, 

and significantly impairs the Commonwealth in this case.

Id. at 2-4.

Our review of the notes of testimony confirms Appellant’s assertion that

after entering his plea, he testified to being innocent, to not having drugs on 

his person, and not residing at the residence where drugs were found. N.T., 

8/16/11, at 2-3. Appellant admitted that he was in a van where a suitcase 

containing drugs was discovered, but stated that the suitcase did not belong 

to him. Id. at 3.

However, Probation Officer Lisa Brudnicki testified that she interviewed 

Appellant after he entered his plea for the purpose of preparing a pre-sentence 

investigation report (PSI). Ms. Brudnicki averred that she and Appellant 

communicated clearly, and that when she reviewed the information about the 

marijuana as described in the affidavit of probable cause, Appellant 

understood it. N.T., 8/19/11, at 8. Ms. Brudnicki testified that Appellant told 

her he had a 10-year business relationship with his co-defendant, Al Bachiller, 

and that “Al proposed the idea of selling marijuana, and [Appellant] agreed to 

it.” Id. at 9. The PSI was admitted into evidence. Id. at 10.

The final and third witness was Appellant’s former attorney, Ernest 

Preate. Mr. Preate testified that Appellant told him “that he didn’t have any 

knowledge” about the marijuana, but that after “the shock” of his codefendants testifying against him at the suppression hearing, and upon 

conferring with Mr. Preate, Appellant entered his guilty plea. Id. at 16-18.
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Thereafter, the trial court denied Appellant’s motion, and determined 

that even under Forbes, Appellant did not have the absolute right to withdraw 

his plea. Citing Commonwealth v. Tennison, 969 A.2d 572 (Pa. Super. 

2009), the court stated, “a mere assertion of innocence does not divest a 

judge of the discretion to weigh [Appellant’s] sincerity according to the totality 

of the circumstances known to the judge.” Order, 1/6/12, at 1. The court 

concluded that Appellant “did not make a credible assertion of innocence and 

thus did not provide a fair and just reason to withdraw his guilty plea prior to 

sentencing.” Id. at 2.

The trial court also found that the Commonwealth would be substantially 

prejudiced by a withdrawal of Appellant’s plea because “the reluctance of the 

three co-defendants to testify in a manner that would cause incarceration of 

[Appellant] is evident.” Id. at 4. As previously noted, “in 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.’” Forbes, 299 A.2d at 271 (citations omitted). “It is settled law 

that ‘prejudice,’ in the withdrawal of a guilty plea context, requires a showing 

that, due to events occurring after the plea was entered, the Commonwealth 

is placed in a worse position than it would have been had trial taken place as 

scheduled.” Blango, 150 A.3d at 51, citing Commonwealth v. Kirsch, 930 

A.2d 1282, 1286 (Pa. Super. 2007). See also Gordy, 73 A.3d at 624 
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(“[P]rejudice is about the Commonwealth’s ability to try its case, not about 

the personal inconvenience to complainants unless that inconvenience 

somehow impairs the Commonwealths prosecution.”). We agree with the trial 

court that the Commonwealth would be prejudiced in this case. The record 

belies Appellant’s assertion that the Commonwealth’s claim of substantial 

prejudice “was not supported and amounted to mere speculation.” Appellant’s 

Brief at 10. Due to the two pleas and nolle prosse in the cases of Appellant’s 

three co-defendants, the Commonwealth would clearly be in a worse position

at trial. This Court recently addressed a similar scenario, stating:

[W]e also agree with the trial court’s finding that Appellant’s guilty 

plea could not be withdrawn because the Commonwealth would 

suffer substantial prejudice from the withdrawal. As noted above, 

Appellant did not assert his alleged innocence until over two years 

after he entered his guilty plea; in that time, his co-defendant

. . . had already entered a guilty plea and had been 

sentenced. The trial court found that [the co-defendant’s] 

lack of motivation to cooperate with the prosecution would 

severely prejudice the Commonwealth if it sought to try 

Appellant.

Commonwealth v. Davis, 2018 PA Super 180 (June 22, 2018) (emphasis 

added).

In sum, we find no abuse of discretion by the trial court. The trial court’s 

denial of Appellant’s motion to withdraw his guilty plea is consistent with both 

the law and facts of record. The Honorable Michael J. Barrasse has presided 

in Appellant’s case from its inception in 2010, through the present appeal. 

Judge Barrasse, now President Judge Barrasse, restated his rationale for 

denying Appellant’s motion to withdraw his guilty plea:
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Specifically, this [c]ourt found that [Appellant’s] motion was 

founded upon a desire to delay sentencing rather than a sincere 

assertion of innocence. A review of [Appellant’s] prior record 

indicated that [Appellant] is no stranger to the criminal justice 

system and as such voluntarily, knowingly, and intelligently 

proffered a guilty plea on the date scheduled for his trial. The 

colloquy indicated that [Appellant] was able to understand the 

questions and answer them affirmatively; and that he both fully 

understood the questions as well as his decision to plead guilty. 

Accordingly, this [c]ourt held that [Appellant’s] assertion of 

innocence was contrived and falls short of a fair and just reason 

to warrant his withdrawal request.

Moreover, this [c]ourt found that, had [Appellant’s]

withdrawal request been permitted, the Commonwealth would 

have suffered substantial prejudice. In reliance upon the 

[Appellant’s] guilty plea, the Commonwealth negotiated two guilty 

pleas with [Appellant’s] co-defendants, Alfred Bachiller and Opal 

Robinson. Both co-defendants, who were two key witnesses set to

testify against [Appellant], entered guilty pleas shortly after 

[Appellant] and were sentenced subsequently thereafter. In 

further reliance on [Appellant’s] guilty plea, the Commonwealth

nolle prossed the charges against the third co-defendant, Pany 

Phommachanh. As such, this [c]ourt determined that as a result 

of these events, the Commonwealth was placed in a worse

position than it would have been had the trial taken place as 

originally scheduled; for example, while the three co-defendants 

would have been available in a technical sense, the reluctance of

the three co-defendants to testify in a manner that would cause 

incarceration of [Appellant] is evident, and significantly impairs 

the Commonwealth in this case.

Trial Court Opinion, 3/16/16, at 7-8.

On this record, we discern no abuse of discretion by the trial court and 

therefore affirm the denial of Appellant’s motion to withdraw his guilty plea.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2018