J-S23040-22

2022 PA Super 178

COMMONWEALTH OF PENNSYLVANIA

v.

TREMAINE DIVINE JAMISON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1355 MDA 2021

Appeal from the Judgment of Sentence Entered September 23, 2021

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

No(s): CP-40-CR-0001365-2020

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

OPINION BY COLINS, J.: FILED OCTOBER 14, 2022

Appellant, Tremaine Divine Jamison, appeals from the judgment of 

sentence of 18 to 40 years’ incarceration, imposed after he pled guilty to thirddegree murder.1

 For the reasons set forth below, we affirm.

On May 31, 2017, Appellant shot and killed Devon Brown (Victim) 

following an argument and fight between them. N.T. Trial at 50-60, 77-78, 

81-95, 115-31, 284-93, 389-91. Appellant fled the scene after the shooting 

and was found by the police approximately two years later in Georgia in 2019, 

id. at 56-58, 345-48, 391, and was charged with an open count of criminal 

homicide and with possession of a firearm by a prohibited person. Criminal 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 2502(c).
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Information. Appellant moved to sever the firearms charge and that motion 

was granted on April 1, 2021. Trial Court Order, 4/1/21.

Appellant’s jury trial on the homicide charge commenced on May 24, 

2021. At trial, the Commonwealth sought a conviction of first-degree murder 

and Appellant in his opening statement asserted that he was not guilty 

because he shot Victim in self-defense. N.T. Trial at 34-35, 41-42. The 

Commonwealth called 13 witnesses at trial, including several eyewitnesses 

who testified that Appellant struck Victim first in the fight and pulled out a 

knife when Victim was unarmed and that after Victim also got a knife, 

Appellant went to retrieve a gun and shot Victim from a distance. Id. at 50-

60, 85-95, 125-31, 285-95. 

On the third day of trial, after the Commonwealth rested its case, 

Appellant entered a guilty plea to third-degree murder and the Commonwealth 

in exchange amended the criminal homicide charge to third-degree murder. 

N.T. Trial at 440-52; N.T. Guilty Plea at 2-11. Before the trial court accepted 

Appellant’s guilty plea, Appellant signed a plea agreement and written plea 

colloquy and the trial court conducted an oral colloquy in which it confirmed 

that Appellant understood that he could be sentenced to 40 years in prison

and understood the third-degree murder charge to which he was pleading 

guilty and the rights that he was giving up by pleading guilty. N.T. Guilty Plea 

at 3-11; Plea Agreement; Written Guilty Plea Colloquy. During the oral

colloquy, Appellant expressed the view that he was not guilty and that the 
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Commonwealth had gotten witnesses to lie, but repeatedly reaffirmed that he 

wanted to plead guilty notwithstanding these beliefs when the trial court 

advised him that he could proceed with the trial. Id. at 7-11. 

Appellant’s sentencing was scheduled for July 29, 2021. N.T. Guilty Plea 

at 11. On July 22, 2021, Appellant, represented by new counsel, filed a motion 

to withdraw his guilty plea in which he asserted that the guilty plea was not 

voluntary and knowing, that he should be allowed to withdraw the plea 

because he is innocent of the charges, and that he entered the plea because 

his trial counsel was unprepared. Motion to Withdraw Guilty Plea ¶8. On

August 31, 2021, the trial court held a hearing on the motion to withdraw the 

guilty plea, at which Appellant testified but did not call any other witnesses. 

N.T. Motions Hearing, 8/31/21, at 4-16. Following Appellant’s testimony and 

argument by Appellant and the Commonwealth, the trial court denied the 

motion to withdraw the plea on the ground that the guilty plea was voluntary 

and knowing and that Appellant’s assertion of innocence was not a sufficient 

basis for withdrawal of the plea because he had not proffered a plausible claim 

of innocence and withdrawal of the plea would substantially prejudice the 

Commonwealth. Id. at 22-24; Trial Court Order, 8/31/21. On September 23, 

2021, the trial court sentenced Appellant to 18 to 40 years’ imprisonment for 

third-degree murder. Sentencing Order. This timely appeal followed. 

Appellant presents the following single issue for our review:

Did the trial court err or abuse its discretion in refusing to allow 

the Defendant to withdraw his plea of guilty prior to sentencing?
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Appellant’s Brief at 2. We review the trial court’s denial of Appellant’s motion 

to withdraw his guilty plea for abuse of discretion. Commonwealth v. Baez, 

169 A.3d 35, 39 (Pa. Super. 2017); Commonwealth v. Islas, 156 A.3d 

1185, 1187 (Pa. Super. 2017). 

Appellant argues that the trial court abused its discretion in denying 

withdrawal of his plea because he asserted that he is innocent of the charges 

and because his plea was not voluntary and knowing. Neither of these 

arguments has merit.

Where a defendant requests to withdraw his guilty plea before he is 

sentenced, the trial court has discretion to grant the withdrawal and that 

discretion is to be liberally exercised to permit withdrawal of the plea if two 

conditions are present: 1) the defendant demonstrates a fair and just reason 

for withdrawing the plea and 2) it is not shown that withdrawal of the plea 

would cause substantial prejudice to the Commonwealth. Commonwealth 

v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015); Baez, 169 A.3d at 39; 

Islas, 156 A.3d at 1188; see also Pa.R.Crim.P. 591(A) (“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”). Appellant’s request 

to withdraw his guilty plea fails on both of these grounds.

A plausible claim of innocence, supported by some facts or evidence in 

the record, constitutes a fair and just reason for allowing pre-sentence 
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withdrawal of a guilty plea. Commonwealth v. Garcia, 280 A.3d 1019, 

1023, 1025-27 (Pa. Super. 2022); Islas, 156 A.3d at 1191-92. Where, 

however, the defendant merely makes a bare assertion that he is innocent 

without any proffer of any supporting basis for that claim, the trial court in its 

discretion may deny withdrawal on the ground that the defendant has not

shown a fair and just reason for withdrawal of the plea. Commonwealth v. 

Norton, 201 A.3d 112, 120-23 (Pa. 2019); Carrasquillo, 115 A.3d at 1292-

93; Commonwealth v. Hvizda, 116 A.3d 1103, 1105, 1107 (Pa. 2015);

Baez, 169 A.3d at 39-41. 

Appellant’s assertion of innocence here was nothing more than a bare 

claim of innocence. Appellant testified at the hearing only that he believed 

that he was innocent because he acted in self-defense, without stating any 

basis for his self-defense claim or pointing to any evidence or facts on which 

a claim of self-defense could be found plausible or colorable. N.T. Motions 

Hearing, 8/31/21, at 5. As the trial court found, N.T. Motions Hearing, 

8/31/21, at 23-24, the evidence introduced by the Commonwealth at trial 

showed that Appellant shot Victim from a distance at a time when Victim posed 

no danger to him and therefore did not support a plausible claim of selfdefense. N.T. Trial at 53-56, 91-94, 128-31, 290-95; see 18 Pa.C.S. § 

505(b)(2). Appellant pointed to no evidence to the contrary. Rather, the only

claim that Appellant made concerning this evidence was his subjective belief

that the Commonwealth’s witnesses lied, a belief that he held at the time that 
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he chose to plead guilty. N.T. Motions Hearing, 8/31/21, at 15; N.T. Guilty 

Plea at 7-9. Appellant pointed to no evidence that contradicted the witnesses’ 

testimony or showed other facts concerning the crime and made no claim that 

he learned any new facts concerning the Commonwealth’s witnesses or 

evidence after his plea. The trial court therefore did not abuse its discretion 

in concluding that Appellant’s claim of innocence was not a sufficient reason 

to permit pre-sentence withdrawal of his guilty plea.

Moreover, even if Appellant’s claim of innocence satisfied the 

requirement of a fair and just reason for withdrawal of the plea, it could not 

support withdrawal of the plea because the record established that withdrawal 

of the plea would cause substantial prejudice to the Commonwealth. Where 

a guilty plea is entered during a jury trial after the Commonwealth has called 

witnesses and presented a substantial portion of its case in chief, withdrawal 

of the plea is properly denied because such a plea withdrawal permits a 

defendant to obtain a second trial before a new jury rather than returning the 

parties to the situation they were in at the time of the plea and therefore

causes the Commonwealth to suffer substantial prejudice. Commonwealth 

v. Whelan, 392 A.2d 1362, 1364 (Pa. 1978) (plurality opinion) (“Only when 

compelling reasons exist, such as a court’s improper acceptance of a guilty 

plea, is a court permitted, after the Commonwealth’s case had commenced 

and a guilty plea entered, to allow the withdrawal of the plea of guilty”); 

Commonwealth v. Morales, 305 A.2d 11, 13 (Pa. 1973) (motion to 
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withdraw guilty plea properly denied on grounds of prejudice where plea was 

entered after Commonwealth’s case in chief at trial); Baez, 169 A.3d at 41-

42 (prejudice to Commonwealth barred plea withdrawal where three 

Commonwealth witnesses had testified at the time defendant entered his 

guilty plea); Commonwealth v. Prendes, 97 A.3d 337, 353, 355 (Pa. Super. 

2014), impliedly overruled on other issue by Commonwealth v. Hvizda, 

116 A.3d 1103 (Pa. 2015) (withdrawal of plea entered at trial after the 

Commonwealth’s case in chief causes substantial prejudice to 

Commonwealth); Commonwealth v. Ammon, 418 A.2d 744, 748 (Pa.

Super. 1980) (prejudice to Commonwealth barred plea withdrawal where jury 

had been selected and most important Commonwealth witnesses had testified 

at the time defendant entered his nolo contendere plea). Here, Appellant 

entered his plea on the third day of his jury trial, after the Commonwealth had 

presented its entire case in chief. N.T. Trial at 440-52; N.T. Guilty Plea at 2-

11. Withdrawal of Appellant’s plea on a ground other than involuntariness or 

other invalidity of the plea was therefore barred by prejudice even if Appellant

had satisfied the requirement that he show a fair and just reason for 

withdrawal of the plea.

A guilty plea may be withdrawn, regardless of when the plea was 

entered or the motion to withdraw was filed, if the defendant shows that the 

plea was not voluntary and knowing. Commonwealth v. Hart, 174 A.3d 

660, 664, 669 (Pa. Super. 2017); Prendes, 97 A.3d at 352; Commonwealth 
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v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003). To establish that a guilty 

plea is voluntary and knowing, the trial court must conduct a colloquy that 

shows the factual basis for the plea and that the defendant understands the 

nature of the charge to which he is pleading guilty, his right to a jury trial, the 

presumption of innocence, the permissible sentencing range for the charge to 

which he is pleading guilty, and the court’s power to reject terms of a plea 

agreement. Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa. Super. 

2018); Commonwealth v. Reid, 117 A.3d 777, 782 (Pa. Super. 2015);

Pollard, 832 A.2d at 522-23; Comment to Pa.R.Crim.P. 590. These matters 

may also be shown by a written plea colloquy read and signed by the 

defendant that is made part of the record and supplemented by an oral, onthe-record examination. Reid, 117 A.3d at 782; Commonwealth v. 

Morrison, 878 A.2d 102, 108-09 (Pa. Super. 2005) (en banc); Comment to 

Pa.R.Crim.P. 590. A defendant is bound by the statements which he makes 

during his plea colloquy and cannot assert challenges to his plea that 

contradict his statements when he entered the plea. Jabbie, 200 A.3d at

506; Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super. 2017); 

Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002).

The plea colloquy here amply demonstrated that Appellant’s guilty plea 

was voluntary and knowing. The trial court’s oral colloquy set forth the factual 

basis of the plea and fully advised Appellant of the elements of the thirddegree murder charge to which he was pleading guilty and Appellant 
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confirmed that he understood both the factual basis of the plea and the 

elements of the crime. N.T. Guilty Plea at 5, 9-10. At the plea hearing and

in the plea agreement that he signed, Appellant was advised and confirmed 

that he understood that the maximum sentence he could receive on his thirddegree murder plea was 40 years’ imprisonment, that his sentence would be 

decided by the court and that there was no agreement concerning the 

sentence that he would receive. Id. at 2-4; Plea Agreement. At the plea 

hearing and in the written colloquy that he signed, Appellant was also advised 

of his right to a jury trial and the presumption of innocence and confirmed 

that he understood those rights and was giving them up in pleading guilty. 

N.T. Guilty Plea at 4-7; Written Guilty Plea Colloquy at 3-6. Indeed, the trial 

court specifically advised Appellant that by pleading guilty he gave up all rights 

to challenge his conviction, except for challenges to the court’s jurisdiction, 

challenges to the voluntariness of his plea, and challenges to the sentence

that the court imposed, and Appellant confirmed that he understood that those 

were the only challenges that he could raise if he pled guilty. N.T. Guilty Plea 

at 10-11. Appellant confirmed in his written plea colloquy that he understood 

that the trial court was not required to accept the plea agreement. Written 

Guilty Plea Colloquy at 7.

In addition, Appellant confirmed that he was not threatened or coerced 

into pleading guilty. N.T. Guilty Plea at 9; Written Guilty Plea Colloquy at 8-

9. Although Appellant expressed unhappiness with the plea during the plea
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hearing and stated that he thought that the Commonwealth’s witnesses lied

and felt that the Commonwealth by the evidence it introduced against him 

was forcing him to plead guilty, he repeatedly stated that he nonetheless 

wanted to plead guilty rather than proceed with the trial. N.T. Guilty Plea at 

7-9, 11. After Appellant expressed dissatisfaction with the plea, the trial court 

made clear to Appellant that it was Appellant’s choice whether to plead guilty 

and that he could proceed with the trial and Appellant unambiguously 

responded that he wanted to plead guilty:

Q. Okay. So after going over this [written plea colloquy] with your 

lawyer, you felt comfortable enough to sign it; correct?

A. No. I didn’t feel comfortable. I feel like it lied on me.

Q. I’m sorry?

A. I feel like it lied on me. I did all that to do all this to me. I feel 

like you gave me a very messed up trial. You got people to come 

in and lie on me. That’s what I feel like.

Q. All right. Well –

A. You got people come in and lie on me.

MR. SAURMAN [Appellant’s trial counsel]: Mr. Jamison, do you 

understand the evidence is up to the jury to decide the truth.

THE COURT: Look, at the end of the day –

[THE DEFENDANT]: The DA lied on me. They had these people 

come and lie on me. Yes, yes. I want to say my piece. Yes, I feel 

like the DA had people come lie on me. So now I’m suffering for 

something I ain’t even do, yeah.

THE COURT: Look, no one is forcing you in any way, shape 

or form to enter a guilty plea. You’ve got to do it of your 

own volition and I’ve got to be satisfied that you're doing 
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it of your own volition. The jury is waiting to continue this 

trial if that’s what you want to do.

THE DEFENDANT: Can I say something?

THE COURT: Mr. Jamison, I understand there are things you want 

to say. You’ve said them –

THE DEFENDANT: I’m good, sir.

THE COURT: From my perspective, I need to know what –

THE DEFENDANT: I'm good, sir. I'm good. I apologize.

THE COURT: No need to apologize. Okay. Do you want to 

continue and proceed?

THE DEFENDANT: No, no.

MR. SAURMAN: Do you want to plead? Is that

what you’re saying?

THE DEFENDANT: Oh, yeah, yeah, yeah.

 * * *

Q. -- I understand that you weren’t necessarily comfortable with 

it, but you did go over this document explaining your rights and 

you signed the final page?

A Uh-huh.

Q. Okay. And you’ve indicated in that document, and correct me 

if I'm wrong, that no one has threatened you in any way to plead 

guilty?

A. No, sir.

Q. No one is forcing you in any way to plead guilty?

A. I feel like the DA is. Is forcing me to plead guilty. I feel like 

that.
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Q. Well, I take that comment to mean that the evidence that’s 

been presented that you don’t agree with?

A. At all. Not at all.

Q. Right. I understand that. Okay. Again, at the end of the day, 

the question that I need to know is whether or not you 

want to proceed with your guilty plea?

A. With the guilty plea, yes.

Q. Okay. And you seem clear on that?

A. Yes.

Id. at 7-9 (emphasis added). Appellant also represented to the trial court 

that he had fully discussed the plea with his trial counsel and was satisfied 

with trial counsel’s representation of him. Id. at 4-6; Written Guilty Plea 

Colloquy at 8. 

Appellant argues that his guilty plea was not knowing and voluntary 

because his trial counsel allegedly misadvised him concerning the sentence he 

would receive, because his trial counsel allegedly was not properly 

representing him at trial, and because he was allegedly led to believe that he 

could freely withdraw his plea. None of these contentions provides any basis 

to conclude that Appellant’s guilty plea was invalid. 

These contentions are all based on Appellant’s testimony at the plea 

withdrawal hearing. N.T. Motions Hearing, 8/31/21, at 5-10, 15. The trial 

court, who had the opportunity to observe Appellant’s demeanor, found that 

Appellant’s testimony at the hearing was not credible. Trial Court Opinion at 

9. This Court is bound by that credibility determination. Commonwealth v. 
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Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018) (“This Court will only 

overturn a trial court’s credibility determination if it is irrational”); 

Commonwealth v. Brown, 23 A.3d 544, 551 (Pa. Super. 2011).

Moreover, Appellant’s factual assertions are contradicted by the record 

from his plea hearing. As discussed above, the plea hearing transcript and 

plea agreement show that Appellant knew that he could be sentenced to up 

to 40 years in prison and that there was no agreement that he would receive 

any lower sentence. N.T. Guilty Plea at 2-4; Plea Agreement. Appellant 

specifically represented in his written plea colloquy that he was satisfied with 

his trial counsel and the dissatisfaction that he expressed at the plea hearing 

was with the Commonwealth’s conduct and the witnesses’ testimony against 

him, not with his counsel’s preparation or performance at trial. Written Guilty 

Plea Colloquy at 8; N.T. Guilty Plea at 7-9. 

Although two questions in the written plea colloquy referred to the 

possibility of challenging his guilty plea based on ineffective assistance of 

counsel, those questions did not advise Appellant that he had an automatic 

right to withdraw his plea. Written Guilty Plea Colloquy at 6-7. Even if those 

questions were capable of the interpretation that Appellant argues, he was not 

led to believe that he could freely withdraw his guilty plea because the trial 

court clearly advised Appellant that his only rights to challenge the plea would 

be limited to challenges to the trial court’s jurisdiction and the voluntariness 

of his plea. N.T. Guilty Plea at 10-11. In any event, misunderstanding by the 
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defendant concerning the standard for withdrawal of his plea does not make 

the plea involuntary or unknowing where, as here, the defendant was properly 

advised of the rights he is waiving by his plea, the possible sentence that he 

can receive and the factual basis and elements of the offense to which he is 

pleading. Prendes, 97 A.3d at 344-45, 351-53. 

For the foregoing reasons, we conclude that the trial court did not abuse 

its discretion in denying Appellant’s motion to withdraw his guilty plea. 

Accordingly, we affirm Appellant’s judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2022