J-S34024-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT DAVIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2096 MDA 2019

Appeal from the Judgment of Sentence Entered December 4, 2019

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

No(s): CP-38-CR-0001379-2018

BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 16, 2020

Appellant, Robert Davis, appeals from the judgment of sentence of one 

to five years’ incarceration, imposed after he pled nolo contendere to 

endangering the welfare of children, indecent assault of a person less than 13 

years of age, and criminal attempt to commit indecent assault. Appellant 

challenges the trial court’s denial of his pre-sentence motion to withdraw his 

plea. After careful review, we affirm.

The trial court summarized the facts and pertinent procedural history of 

Appellant’s case, as follows:

The victim, A.F., age 12, reported to her mother and subsequently 

to [Children’s Resource Center (CRC)] that [Appellant] entered 

her bedroom on July ... 11, 2018, at around 4 a.m.[,] and was 

lying next to her and touch[ing] her thigh and feet. The victim 

further indicated that the following night[,] she woke up to 

[Appellant] pulling on her underwear strap. [The v]ictim observed 

[Appellant] running out of her bedroom. Upon review of the 

documents provided by CRC, on October 9, 2018, according to the 
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Bill of Information, [Appellant] was charged with [e]ndangering 

[w]elfare of [c]hildren, [i]ndecent [a]ssault of a [p]erson less than 

13 years of [a]ge[,] and [c]riminal [a]ttempt. On August 31, 

2018, due to a conflict of interest[] by the Public Defender’s Office, 

Joshua Harshberger[,] Esq.[,] was appointed to represent 

[Appellant].

On January 24, 2019, [Appellant], in the presence of ... 

[A]ttorney ... Harshberger, ... entered a negotiated [n]olo 

[c]ontendere [p]lea on all three charges. At sentencing on July 

31, 2019, [Appellant] informed the [c]ourt that he wished to 

withdraw his plea and proceed to trial on the matter. 

Trial Court Opinion (TCO), 2/21/20, at 3-4.

The court continued Appellant’s sentencing proceeding to August 14, 

2019, thereby providing Appellant time to file a written motion to withdraw 

his plea. Appellant filed that motion on August 12, 2019. Therein, he alleged 

that he wished to withdraw his plea because he had received “information that 

the victim in this matter [was] recanting the accusation.” Motion to Withdraw 

Plea, 8/12/19, at 2 (unnumbered). Appellant further explained that “in July 

of 2019[,]” defense counsel, Attorney Harshberger, had received an undated 

letter written by the victim in which she “recant[ed] the allegations [she] 

testified to at the preliminary hearing on September 6, 2018[,] and [the] 

allegations [she] reported to the county detectives [on] which the criminal 

information relies....” Id. Curiously, Attorney Harshberger did not attach the 

victim’s letter to Appellant’s motion to withdraw his plea. 

On October 2, 2019, the court conducted a hearing on Appellant’s 

motion. There, Attorney Harshberger reiterated that he had received a letter 

from the victim recanting her allegations against Appellant. Once again, 

however, counsel failed to present the letter to the court; he did not enter it 
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into evidence, or call the victim to testify about her recantation. For its part, 

the Commonwealth conceded that the victim wrote the recantation letter, but 

it argued that certain statements in the letter indicated the victim was being 

“fed some of this information.” N.T. Hearing, 10/2/19, at 9, 10. The 

Commonwealth also explained that the victim’s mother was in a romantic 

relationship with Appellant. At the time the victim wrote the letter, she was 

living with her mother again, and Appellant was free on bail. Id. at 10, 11. 

Additionally, the Commonwealth stated that the victim was “not recanting 

being touched..., but she [is] now saying that it was some ... teenage boy who 

came into her house in the middle of the night and did these things and it was 

[not Appellant].” Id. at 11. 

After hearing the parties’ arguments, the court denied Appellant’s 

motion to withdraw his plea. The court reasoned that the victim’s recantation 

was not credible, given its timing and the circumstances surrounding it. Id.

at 12. The court also accepted the Commonwealth’s argument that it would 

be prejudiced by the withdrawal of Appellant’s plea because there was a 

“substantial timeframe” between when Appellant entered his plea in January 

of 2019 until when he sought to withdraw it in August of 2019. Id. at 9, 12. 

Following the court’s denial of Appellant’s motion, Attorney Harshberger 

sought leave to withdraw from representing Appellant, claiming that Appellant 

now wished to withdraw his plea on the basis that Attorney Harshberger had 

acted ineffectively in representing him. The court conducted a hearing on 

counsel’s motion to withdraw on October 30, 2019. At the close thereof, the 
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court entered an order granting Attorney Harshberger’s petition to withdraw 

and scheduling Appellant’s sentencing for December 4, 2019. On that date, 

the court imposed the sentence set forth supra.

Appellant filed a timely, pro se notice of appeal, and he complied with 

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. The court thereafter filed a Rule 1925(a) opinion. 

On January 23, 2020, this Court remanded Appellant’s case for the trial court 

to conduct a colloquy pursuant to Commonwealth v. Grazier, 713 A.2d 81 

(Pa. 1998), to discern if Appellant was knowingly, intelligently, and voluntarily 

waiving his right to counsel on appeal. The court conducted that colloquy and 

ultimately appointed counsel for Appellant. 

Herein, Appellant states one issue for our review: “Should the request 

of ... Appellant to withdraw his nolo contendere plea [have] been granted given 

the fact that the alleged victim in the case wrote a letter ... recanting the 

allegations against ... Appellant and the date of that letter was after he entered 

the plea with the [c]ourt?” Appellant’s Brief at 20.

Preliminarily, we observe that we review a trial court’s ruling on a presentence motion to withdraw a guilty plea for an abuse of discretion. See 

Commonwealth v. Islas, 156 A.3d 1185, 1187 (Pa. Super. 2017). 

Additionally, our Supreme Court has explained:

[I]n 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 
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permitted, unless the prosecution has been “substantially 

prejudiced.”

Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973) (internal citations 

and some internal quotations omitted).

In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), the 

Court provided additional guidance as to the proper exercise of a trial 

court’s discretion in ruling on a pre-sentence motion to withdraw a plea. 

While reaffirming the “liberal allowance” standard, the Court 

acknowledged that its previous application of that standard had “lent 

the [false] impression that [the] Court had required acceptance of a 

bare assertion of innocence as a fair-and-just-reason” for withdrawal. 

Id. at 1292. The Carrasquillo Court clarified that “a bare assertion of 

innocence is not, in and of itself, a sufficient reason to require a court 

to grant” a pre-sentence motion to withdraw. Id. at 1285. Rather,

a defendant’s innocence claim must be at least plausible to 

demonstrate, in and of itself, a fair and just reason for 

pre[-]sentence withdrawal of a plea. 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. 

The policy of liberality remains extant but has its limits, 

consistent with the affordance of a degree of discretion to 

the common pleas courts.

Id. at 1292. Thus, the Carrasquillo Court established that a trial 

court possesses discretion to assess the plausibility of a defendant’s 

claim of innocence. In doing so, “both the timing and the nature of 

the innocence claim, along with the relationship of that claim to the 
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strength of the government’s evidence, are relevant.” Islas, 156 A.3d 

at 1191. More recently, our Supreme Court further elucidated that,

[c]onsistent with the well-established standards governing trial 

court discretion, it is important that appellate courts honor 

trial courts’ discretion in these matters, as trial courts are 

in the unique position to assess the credibility of claims of 

innocence and measure, under the circumstances, whether 

defendants have made sincere and colorable claims that 

permitting withdrawal of their pleas would promote fairness 

and justice.

Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019).

Here, the trial court did not find that fairness and justice would be 

promoted by permitting Appellant to withdraw his plea based on the victim’s 

purported recantation. Again, Appellant did not attach the victim’s letter of 

recantation to his petition to withdraw his plea, or make any attempt to enter 

the letter into evidence at the hearing on his motion. He also did not seek to 

call the victim to the stand. Instead, Appellant and the Commonwealth simply 

described the contents of the victim’s letter to the court, and explained the 

circumstances and timing of its drafting. The Commonwealth stressed that 

the victim’s undated letter was ostensibly written when Appellant was free on 

bail and the victim was living with her mother, who was romantically involved 

with Appellant. The Commonwealth suggested that Appellant and/or the 

victim’s mother had coached the victim in writing the letter. The 

Commonwealth also noted that the victim was not recanting her allegation 

that she had been abused, but was claiming that the perpetrator of the abuse 

was not Appellant, but a teenage boy who had snuck into her room in the 
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middle of the night. Appellant made no objection to the Commonwealth’s 

description of the content or context of the victim’s recantation letter. 

Ultimately, the court found the timing and circumstances of the victim’s 

letter to be suspicious, and her recantation incredible. We discern no abuse 

of discretion in that decision. While on appeal, Appellant discusses the 

contents of the victim’s letter and attaches a copy to his brief, the letter was 

never entered into evidence or filed in the certified record; therefore, we 

cannot consider it on appeal. See Bennyhoff v. Pappert, 790 A.2d 313, 318 

(Pa. Super. 2001) (stating “[i]t is black letter law in this jurisdiction that an 

appellate court cannot consider anything which is not part of the record in 

[the] case”). 

Additionally, we reject Appellant’s suggestion that the court erred by 

making a credibility determination regarding the victim’s recantation when her

letter was not admitted into evidence, and the victim did not testify at the 

hearing. Appellant does not cite to where in the record he attempted to admit

this (or any other) evidence for the court’s consideration. It was Appellant’s 

burden to present evidence in order to make “a colorable demonstration, 

under the circumstances, such that permitting withdrawal of the plea 

would promote fairness and justice.” Carrasquillo, 115 A.3d at 1292. 

Clearly, he failed to do so. Therefore, he cannot now complain that the court 

did not have a sufficient record before it to make a credibility determination 

regarding the victim’s recantation. 
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In sum, the court found the victim’s recantation incredible based on the 

Commonwealth’s discussion of the context and content of that recantation. 

Appellant did not object to the Commonwealth’s characterization of the letter 

and the circumstances surrounding it, or present any evidence to support his 

request to withdraw his plea. Thus, we conclude that the record supports the 

court’s determination that Appellant did not make a colorable claim of 

innocence to justify the pre-sentence withdrawal of his plea. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/16/2020