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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT DAVIS

Appellant :

:

:

:

:

:

:

:

: 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 fr om 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

chall enges 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 p ertinent 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 theJ

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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] ontende re [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 sentenc ing 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 “informatio n t hat

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

Ple a, 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. Curiousl y , 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 th e victim recanting her a llegations against Appellant. Once again,

h owever, counsel failed to present the letter to the court; he did not enter itJ

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into evidence

, or call the victim to testify about her recantation. For its part,

t he 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 . A t 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 touc hed..., 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 wi thdraw 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 Ap pellant’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. a t 9, 12.

Following the court’s denial of Appellant’s motion, Attorney Hars hberger

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, theJ

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court entered an order granting Attorney Harshberger’s pe tition 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

waiv ing 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 pre

sentence motion to withdraw a guilty p lea 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 determ ining 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 freelyJ

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p ermitted, 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 pr ovided 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 possess es 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 theJ

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strength of the gov ernment’ 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

p urported 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 th e

circumstances and timing of its drafting

. T he 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

Common wealth also noted that t he victim was not recant ing 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 theJ

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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 abu se

of discretion in th at 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 Appel lant’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 h e 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.J

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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 circums tances 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 mak e 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