J-S51009-16

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RAYMOND HARRY MILEY

Appellant No. 2997 EDA 2015

Appeal from the PCRA Order September 3, 2015

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0007472-2009

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 03, 2016

Appellant, Raymond Harry Miley, appeals from the order entered in the 

Bucks County Court of Common Pleas, which dismissed his petition filed 

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. 

We affirm. 

The relevant facts and procedural history of this case are as follows. 

Appellant engaged in sexual activity with his adopted daughter over a period 

of several years, beginning in 2001 when she was under thirteen years old. 

In 2009, the Commonwealth charged Appellant with multiple counts of rape 

of a child, involuntary deviate sexual intercourse (“IDSI”), and related 

offenses. The Commonwealth’s evidence included a consensual wiretap of a 

telephone conversation between Appellant and the victim, in which Appellant 
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admitted having sex with the victim. On December 24, 2009, Appellant filed 

a motion to suppress the audio recording of the conversation. Following a 

hearing, the trial court denied the suppression motion on the morning of 

March 10, 2010. After a lunch recess, Appellant returned to court that same 

date and entered an open guilty plea to rape of a person less than 13 years 

old, rape of a child,1IDSI with a person less than 16 years of age, unlawful 

contact with minor, incest, aggravated indecent assault of a person less than 

16 years of age, endangering welfare of children, and corruption of minors. 

The court held an initial sentencing hearing on June 25, 2010. The victim 

gave an oral victim impact statement, and plea counsel cross-examined her 

on that statement. After the victim’s testimony concluded, Appellant 

requested a continuance to file a motion to withdraw his guilty plea. The 

court granted the continuance. On July 9, 2010, Appellant filed a motion to 

withdraw his guilty plea, which the court denied. The court sentenced 

Appellant on October 15, 2010, to an aggregate term of fifteen (15) to thirty 

(30) years’ incarceration. Appellant filed a motion for reconsideration of 

sentence, which the court granted. On December 13, 2010, the court 

reduced Appellant’s aggregate sentence to twelve and one-half (121⁄2) to 

twenty-five (25) years’ incarceration. The court subsequently modified 

____________________________________________

1

In 2002, the offense of “rape of a person less than 13 years of age” was 

renamed “rape of a child” and moved to a different subsection of the rape 

statute. 
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Appellant’s sentence to reflect corrected mandatory minimum terms for rape 

of a child and IDSI, pursuant to 42 Pa.C.S.A. § 9718.2 Appellant’s aggregate 

sentence remained twelve and one-half (121⁄2) to twenty-five (25) years’ 

incarceration. Appellant filed a pro se notice of appeal, which he 

subsequently withdrew. 

On July 15, 2011, Appellant filed a pro se PCRA petition. The court 

appointed counsel, who filed multiple amended petitions. Appellant and the 

Commonwealth ultimately stipulated to reinstatement of Appellant’s direct 

appeal rights nunc pro tunc. Appellant filed a notice of appeal nunc pro 

tunc, and this Court affirmed Appellant’s judgment of sentence on June 10, 

2014. See Commonwealth v. Miley, No. 219 EDA 2013, unpublished 

memorandum (Pa.Super. filed June 10, 2014). Appellant timely filed the 

current counseled PCRA petition on August 8, 2014. Following a hearing, 

the PCRA court denied the petition on September 3, 2015. On September 

28, 2015, Appellant filed a timely notice of appeal. The court ordered 

Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied. 

Appellant raises the following issues for our review: 

____________________________________________

2 Appellant does not challenge his mandatory minimum sentences. 

Moreover, we observe our Supreme Court’s recent decision in 

Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810 (2016), which 

held that Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 

(2013) does not apply retroactively for purposes of collateral attacks on 

mandatory minimum sentences as illegal sentences. 
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WHETHER THE HONORABLE TRIAL COURT ERRED BY 

FINDING APPELLANT’S GUILTY PLEA WAS KNOWING, 

VOLUNTARY, AND INTELLIGENT BECAUSE [PLEA] 

COUNSEL WAS INEFFECTIVE IN THAT HE FAILED TO FULLY 

INFORM APPELLANT OF CRUCIAL EVIDENCE, TO WIT, A 

REPORT FROM AN EXPERT INDICATING THE WIRETAP 

TAPE MAY NOT HAVE BEEN ACCURATE?

WHETHER THE HONORABLE TRIAL COURT ERRED BY 

FINDING APPELLANT’S GUILTY PLEA WAS KNOWING,

VOLUNTARY AND INTELLIGENT BECAUSE [PLEA] COUNSEL 

WAS INEFFECTIVE IN THAT HE IMPROPERLY PROMISED 

THAT APPELLANT WOULD ONLY RECEIVE A FIVE YEAR 

SENTENCE AS OFFERED BY [PLEA] COUNSEL BY THE 

HONORABLE TRIAL COURT AND APPELLANT RELIED UPON 

THAT REPRESENTATION?

WHETHER [PLEA] COUNSEL WAS INEFFECTIVE BECAUSE 

HE DID NOT CORRECTLY INFORM APPELLANT OF THE 

ELEMENTS OF THE CRIMES TO WHICH HE [PLED] GUILTY 

THEREBY RENDERING THE GUILTY PLEA UNKNOWING, 

INVOLUNTARY, AND UNINTELLIGENT?

WHETHER THE HONORABLE TRIAL COURT ERRED BY 

FINDING [PLEA] COUNSEL EFFECTIVE DESPITE THE FACT 

THAT HE FAILED TO FILE A MOTION TO WITHDRAW 

APPELLANT’S GUILTY PLEA AT AN EARLIER DATE AND/OR 

FAILED TO PROVIDE SUFFICIENT BASES FOR THE 

WITHDRAWAL?

(Appellant’s Brief at 4). 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error. 

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal 

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference 

to the findings of the PCRA court if the record contains any support for those 
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findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), 

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We owe no deference, 

however, to the court’s legal conclusions. Commonwealth v. Ford, 44 

A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a post-conviction 

court’s credibility determination, it is binding on the appellate court. 

Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999), appeal 

denied, 563 Pa. 659, 759 A.2d 383 (2000). 

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When 

asserting a claim of ineffective assistance of counsel, a petitioner is required 

to make the following showing: (1) the underlying claim is of arguable merit; 

(2) counsel had no reasonable strategic basis for his action or inaction; and, 

(3) but for the errors and omissions of counsel, there is a reasonable 

probability that the outcome of the proceedings would have been different. 

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). 

The failure to satisfy any prong of the test for ineffectiveness will cause the 

claim to fail. Williams, supra. 

“The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and which forms the basis 

for the assertion of ineffectiveness is of arguable merit....” Commonwealth 

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot 

be found ineffective for failing to pursue a baseless or meritless claim.” 
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Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal 

denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v. 

Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)). 

Once this threshold is met we apply the “reasonable basis” 

test to determine whether counsel’s chosen course was 

designed to effectuate his client’s interests. If we conclude 

that the particular course chosen by counsel had some 

reasonable basis, our inquiry ceases and counsel’s 

assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

Prejudice is established when [a defendant] demonstrates

that counsel’s chosen course of action had an adverse

effect on the outcome of the proceedings. The defendant

must show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome. In [Kimball, supra], we held 

that a “criminal defendant alleging prejudice must show 

that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 

(2002) (some internal citations and quotation marks omitted). 

In issue one, Appellant argues plea counsel litigated the suppression 

motion before he received important evidence, i.e., an expert report (“OWL 

report”) regarding the authenticity of the copied recording of a telephone 

conversation between Appellant and the victim. Appellant asserts counsel 

should have requested a continuance to gain a better understanding of the 

OWL report’s findings. Appellant contends his guilty plea was unknowing 

and involuntary because he relied on counsel’s false representations that the 
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OWL report concluded the recording had no authenticity issues. Appellant 

claims counsel did not read the report before Appellant entered his plea but 

simply relied on a colleague’s recitation of parts of the report over the 

phone. Appellant maintains the findings of the OWL report went to the 

admissibility of the recording. Appellant concludes counsel was ineffective 

for inducing him to plead guilty based on misinformation concerning the 

OWL report. We disagree. 

“To satisfy the requirement of authenticating or identifying an item of 

evidence, the proponent must produce evidence sufficient to support a 

finding that the item is what the proponent claims it is.” Pa.R.E. 901(a). 

[T]he ultimate determination of authenticity is for the jury. 

A proponent of a document need only present a prima 

facie case of some evidence of genuineness in order to put 

the issue of authenticity before the factfinders. 

The court makes the preliminary determination of whether 

or not a prima facie case exists to warrant its submission 

to the finders of fact, but the jury itself considers the 

evidence and weighs it against that offered by the 

opposing party.

Commonwealth v. Brooks, 508 A.2d 316, 320 (Pa.Super. 1986) (internal 

citations omitted) (emphasis in original). 

Instantly, on September 30, 2009, law enforcement conducted a 

wiretap of a telephone conversation between Appellant and the victim, with 

the victim’s consent. During pretrial discovery, plea counsel obtained a CD 

copy of the audio recording of the conversation. Appellant listened to it and 

denied having made the incriminating statements on the recording. 
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Appellant told counsel he believed different parts of the recording had been 

spliced together to make it sound like Appellant was admitting guilt. 

Counsel then hired an expert from OWL Investigations, Inc. to analyze the 

recording and determine if it had been manipulated in that manner, i.e., if 

Appellant’s words had been shifted around. The expert’s report arrived at 

plea counsel’s office on the day of the suppression hearing. Meanwhile, 

counsel litigated the suppression motion on issues related to the 

Commonwealth’s preservation of the audio recording and compliance with 

the wiretap statute. 

At the suppression hearing, the Commonwealth presented the 

testimony of Officer Gorman, who was involved in the wiretap investigation. 

Officer Gorman testified that he was present during the recorded phone call 

between Appellant and the victim. The victim nodded to Officer Gorman to 

indicate that Appellant was the person on the other end of the line. Officer 

Gorman testified that the recording was downloaded from a chip in the 

recorder to a county-owned computer. Officer Gorman then made a CD 

copy of the recording and downloaded another copy into an archive system. 

Following the close of the Commonwealth’s evidence, the court denied 

Appellant’s motion to suppress, without prejudice to Appellant’s right to raise 

issues related to the OWL report. During the ensuing lunch recess, plea 

counsel received a message from his law office that the OWL report had 

arrived. Over the phone, one of the attorneys at the office read portions of 
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the report to plea counsel regarding the expert’s methods and conclusions. 

The report referenced “anomalies” in the audio recording but did not 

conclude any “splicing” had occurred. Counsel also spoke to the expert 

during the recess. At the PCRA hearing, counsel testified as follows: 

I believe [the report] talked about anomalies. That’s the 

main word that [the expert] Mr. Owen used. And I spoke 

to him after that, and he could not tell me that—he could 

not testify in court that there were things taken out 

of context. He could only talk about hearing things in the 

background and digital—some type of—not a time stamp 

but something that indicates that it did not sound continual 

to him.

(N.T. PCRA Hearing, 4/1/15, at 30-31) (emphasis added). Counsel 

concluded the report would affect only the weight of the evidence, not its 

admissibility, which was a reasonable conclusion in light of the expert’s 

findings, and the authentication evidence the Commonwealth presented at 

the suppression hearing. See Brooks, supra. Counsel testified that he had 

shared the information he received about the report with Appellant during 

the court recess. Based on that discussion and previous conversations with 

counsel on the possibility of pleading guilty, Appellant decided to enter a 

guilty plea. Additionally, Appellant testified that he received a copy of the 

OWL report from counsel approximately five weeks after the plea had been 

entered. Therefore, Appellant had ample time to review the report before 

the sentencing hearing on June 25, 2010. Nevertheless, counsel testified 

that Appellant made no request to withdraw his plea at any time before 

sentencing. The PCRA court credited counsel’s testimony on this issue. See 
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Knighten, supra. Based on the foregoing, Appellant failed to establish 

arguable merit to his claim that counsel misrepresented the OWL report. 

Appellant also failed to establish prejudice, i.e., that he would not have pled 

guilty if counsel had provided an accurate picture of the report’s content. 

Thus, Appellant’s first challenge to counsel’s effectiveness merits no relief.3 

See Kimball, supra. 

In issue two, Appellant argues plea counsel repeatedly told Appellant 

he would receive a maximum five-year sentence if he pled guilty. Appellant 

further contends counsel improperly involved the trial court in the plea 

negotiations. Appellant claims he was induced to plead guilty by counsel’s 

false assurances of a five-year sentence. Appellant concludes counsel’s 

representations regarding sentencing constituted ineffective assistance. We 

disagree. 

“Allegations of ineffectiveness in connection with the entry of a guilty 

plea will serve as a basis for relief only if the ineffectiveness caused the 

defendant to enter an involuntary or unknowing plea.” Commonwealth v. 

Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v. 

____________________________________________

3 Appellant also suggests counsel was ineffective for failing to raise other 

issues at Appellant’s suppression hearing. Appellant, however, failed to 

develop his argument on those issues, including the merit of the underlying 

claims. Therefore, those issues are waived. See Commonwealth v. 

D’Amato, 579 Pa. 490, 500, 856 A.2d 806, 812 (2004) (stating that to 

succeed on allegation of counsel’s ineffectiveness, PCRA petitioner must, at 

minimum, present argumentation relative to each layer of ineffective 

assistance, on all three prongs of the ineffectiveness standard). 
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Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)). “Where the defendant 

enters his plea on the advice of counsel, the voluntariness of the plea 

depends on whether counsel’s advice was within the range of competence 

demanded of attorneys in criminal cases.” Id. 

The standard for post-sentence withdrawal of guilty pleas 

dovetails with the arguable merit/prejudice requirements 

for relief based on a claim of ineffective assistance of plea 

counsel, ...under which the defendant must show that 

counsel’s deficient stewardship resulted in a manifest 

injustice, for example, by facilitating entry of an 

unknowing, involuntary, or unintelligent plea. This 

standard is equivalent to the “manifest injustice” standard 

applicable to all post-sentence motions to withdraw a 

guilty plea. 

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa.Super. 2005) (en 

banc), appeal denied, 585 Pa. 688, 887 A.2d 1241 (2005) (internal citations 

omitted). 

Further, a trial judge may not participate in the plea bargaining 

process. Commonwealth v. Evans, 434 Pa. 52, 252 A.2d 689 (1969); 

Commonwealth v. Johnson, 875 A.2d 328 (Pa.Super. 2005), appeal 

denied, 586 Pa. 748, 892 A.2d 822 (2005). 

“Participation”...denotes some active role in discussion or 

negotiations relative to a plea. It is to be avoided as 

undesirable and potentially unfair to a defendant.... The 

mere presence of a trial judge at a conversation between 

counsel at which the possibility of a plea bargain is 

mentioned does not amount to participation by the trial 

judge in the plea bargaining. 

Commonwealth v. Sanutti, 454 Pa. 344, 348, 312 A.2d 42, 44 (1973). 

Instantly, the PCRA court reasoned as follows:
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We begin by noting that the testimony elicited at 

Appellant’s PCRA Hearing contradicts the notion that this 

[c]ourt engaged in any sentencing negotiations. [Plea 

counsel] testified that during a conference prior to the 

Suppression Hearing, both himself and the assistant 

district attorney discussed potential sentences if Appellant 

entered a guilty plea. [Plea counsel] explicitly testified 

that this [c]ourt was not involved in the negotiations, but 

rather simply confirmed that a mandatory minimum was 

being invoked in the case. So the premise supporting 

Appellant’s claim is erroneous. 

Next, the testimony from Appellant’s PCRA Hearing further

establishes that no promises of any sentence were made 

to Appellant. [Plea counsel] confirmed that he did not 

promise Appellant that he would receive a five (5) year 

sentence if he pled guilty, but rather estimated that the 

sentence would be between the five (5) year mandatory 

minimum sentence and the ten (10) year sentence that 

the assistant district attorney represented that she would 

seek. Moreover, despite Appellant[’s] and [his father’s] 

testimony that [plea counsel] continually communicated 

that Appellant should expect to receive a five (5) year 

sentence, letters that they each wrote at the time reflect 

that neither individual was expecting any particular 

sentence.

* * *

Finally, Appellant confirmed when entering his guilty plea 

that he was not promised any particular sentence. The 

exchange between this [c]ourt and Appellant went as 

follows:

The [c]ourt: Has anybody promised you about 

what my sentence would be?

Appellant: No, your honor.

N.T. [Guilty Plea,] 3/10/10, [at] 15. When given the 

opportunity to divulge any promises that were made by 

[plea] counsel or any other person, Appellant confirmed 

that no promises were made regarding any potential 

sentence that could be imposed. Considering the fact that 
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the testimony and evidence produced at Appellant’s PCRA 

Hearing, coupled with Appellant’s admissions under oath at 

his Guilty Plea Hearing, contradict any suggestion that 

Appellant was promised a particular sentence, there is no 

value to the claim that Appellant’s guilty plea was not 

knowing, intelligent, or voluntary due to that reason. 

Therefore, Appellant’s [plea] counsel cannot be ineffective 

when the underlying claim lacks merit. 

(PCRA Court Opinion, filed January 7, 2016, at 11-12). The record supports 

the PCRA court’s findings that: (1) the trial court did not improperly 

participate in plea negotiations; and (2) counsel did not induce Appellant to 

plead guilty with false assurances of a maximum five-year sentence. 

Therefore, the claims underlying Appellant’s second ineffectiveness challenge 

lack arguable merit. See Pierce, supra. 

In issue three, Appellant argues the court misinformed him regarding 

the elements of IDSI during the guilty plea colloquy. Appellant asserts the 

court referred to “sexual intercourse” but the offense requires an act of 

“deviate sexual intercourse.” Appellant contends this mistake rendered his 

plea involuntary and counsel was ineffective for failing to correct the error. 

We disagree. 

The Pennsylvania Rules of Criminal Procedure mandate that pleas be 

taken in open court, and require the court to conduct an on-the-record 

colloquy to ascertain whether a defendant is aware of his rights and the 

consequences of his plea. Commonwealth v. Hodges, 789 A.2d 764 

(Pa.Super. 2002). Specifically, the court must affirmatively demonstrate the 

defendant understands: (1) the nature of the charges to which he is 
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pleading guilty; (2) the factual basis for the plea; (3) his right to trial by 

jury; (4) the presumption of innocence; (5) the permissible ranges of 

sentences and fines possible; and (6) the judge is not bound by the terms of 

the agreement unless he accepts the agreement. Pa.R.Crim.P. 590 

Comment; Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003). 

“The guilty plea colloquy must affirmatively demonstrate that the defendant 

understood what the plea connoted and its consequences.” 

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.Super. 2008), appeal 

denied, 600 Pa. 742, 964 A.2d 893 (2009). Defense counsel or the attorney 

for the Commonwealth may conduct part or all of the examination of the 

defendant, as permitted by the court. Pa.R.Crim.P. 590 Comment. A guilty 

plea will be deemed valid if an examination of the totality of the 

circumstances surrounding the plea shows that the defendant had a full 

understanding of the nature and consequences of his plea such that he 

knowingly and intelligently entered the plea of his own accord. 

Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006). “[A] trial court 

may consider a wide array of relevant evidence...to determine the validity of 

a...plea agreement including, but not limited to, transcripts from other 

proceedings, off-the-record communications with counsel, and written plea 

agreements.” Commonwealth v. Allen, 557 Pa. 135, 147, 732 A.2d 582, 

589 (1999). 

Instantly, at Appellant’s guilty plea hearing, the trial court conducted a 
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lengthy colloquy in which it reviewed, inter alia, the elements of each 

applicable offense. While reviewing the IDSI charge, the court stated:

THE COURT: What that means is that between the years 

of 2003 and 2005 you engaged in sexual intercourse with 

a child...who was less than 16 years of age while you were 

more than four years older than she was, and that the two 

of you were not married to each other. Do you understand 

that?

[APPELLANT]: Yes.

(N.T. Guilty Plea at 19). The court did not specify “deviate” sexual 

intercourse at that moment of the colloquy. Nevertheless, during the same 

proceedings, the Commonwealth recited the factual basis underlying the 

IDSI charge as follows: “[T]he alleged deviate sexual intercourse in this case 

is using a sex toy on the victim’s vagina when she was 15 years of age, and 

also [Appellant], in addition to placing the toy there, he also placed his 

tongue on the victim’s vagina when she was younger than 16 years old.” 

Id. at 30. The following exchange then took place between the court and 

Appellant:

THE COURT: Do you understand what [the 

Commonwealth] said?

APPELLANT: Yes.

THE COURT: You understand that those are the 

facts that support the charge?

APPELLANT: Yes.

THE COURT: You’re admitting to that?

APPELLANT: Yes.
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Id. at 30-31. Additionally, the criminal complaint and information correctly 

set forth the elements of IDSI, and plea counsel testified at the PCRA 

hearing that he had reviewed the charges with Appellant before the guilty 

plea hearing. An examination of the totality of the circumstances 

surrounding the plea reveals Appellant understood the nature of the IDSI 

charge. Therefore, counsel was not ineffective for failing to inform Appellant 

of the elements of IDSI.4 See Pierce, supra. 

In issue four, Appellant argues he asked plea counsel to file a motion 

to withdraw the guilty plea immediately upon receipt of the OWL report. 

Appellant contends the trial court denied his motion to withdraw the plea, 

and this Court affirmed that decision, because counsel waited to file the 

motion until after the victim had testified at the June 25, 2010 sentencing 

hearing. Appellant maintains counsel could have avoided prejudice to the 

Commonwealth by filing the motion to withdraw earlier. Appellant further 

asserts counsel failed to present and preserve meritorious grounds for 

withdrawing the plea, other than Appellant’s assertion of innocence and a 

change in defense strategy based on the victim’s impact testimony. 

____________________________________________

4 To the extent Appellant directly challenges the validity of the guilty plea 

based on a defective plea colloquy, that issue is waived because Appellant 

failed to raise it in his motion to withdraw the guilty plea or on direct appeal. 

See 42 Pa.C.S.A. § 9544(b) (stating: “[A]n issue is waived if the petitioner 

could have raised it but failed to do so before trial, at trial, during unitary 

review, on appeal or in a prior state postconviction proceeding”). 
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Appellant claims counsel should have argued Appellant’s plea was 

involuntary in light of the OWL report and/or the trial court’s misstatement 

of the elements of IDSI during the plea colloquy. Appellant concludes 

counsel’s delay in filing a motion to withdraw the plea, and counsel’s failure 

to argue meritorious grounds for withdrawal, constituted ineffective 

assistance. We disagree. 

The following legal principles apply to a pre-sentence motion to 

withdraw a plea:

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. Although there is no absolute right to withdraw 

a guilty plea, properly received by the trial court, it is clear 

that a request made [b]efore sentencing...should be 

liberally allowed. Thus, 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.” As a general rule, the mere articulation of 

innocence [is] a “fair and just” reason for the pre-sentence 

withdrawal of a guilty plea unless the Commonwealth has 

demonstrated that it would be substantially prejudiced. 

Commonwealth v. Prendes, 97 A.3d 337, 351–52 (Pa.Super. 2014), 

appeal denied, 629 Pa. 635, 105 A.3d 736 (2014) (internal citations 

omitted). See also Commonwealth v. Carrasquillo, ___ Pa. ___, 115 

A.3d 1284 (2015) (holding there is no per se rule regarding pre-sentence 

requests to withdraw pleas; court should consider plausibility, sincerity, 
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motivation, and timing of request; courts must also consider whether 

allowing withdrawal of plea will prejudice Commonwealth). 

Instantly, at the initial sentencing hearing on June 25, 2010, the victim 

gave an oral victim impact statement. During cross-examination of the 

victim regarding her impact statement, plea counsel elicited testimony that 

he believed cast doubt on the victim’s memory of when the sexual abuse 

started. Counsel requested a continuance and subsequently filed a motion 

to withdraw Appellant’s guilty plea. The trial court denied the motion. On 

appeal, this Court affirmed the trial court’s ruling on the ground that the 

Commonwealth would be substantially prejudiced by Appellant’s withdrawal 

of his guilty plea at that late stage in the proceedings.5 

With respect to Appellant’s claim that counsel was ineffective for failing 

to seek withdrawal of the plea at an earlier time, the PCRA court reasoned:

The “fair-and-just reason” cited by Appellant in his Motion 

was the change in the victim’s statement that was 

revealed when she testified at Appellant’s Sentencing 

Hearing. [Plea counsel] testified that as soon as he 

____________________________________________

5 This Court stated: “The averments represent an admission that [Appellant] 

believed he had obtained an advantage from Victim’s oral impact statement 

that could be used against her and to the Commonwealth’s detriment. 

[Appellant] obtained testimony otherwise unavailable to him, to the 

Commonwealth’s prejudice. [Appellant] was intending to use the 

information to alter his trial strategy. Notwithstanding [Appellant’s] 

subsequent assertion of innocence, [Appellant] was seeking to use 

information only available through the sentencing process to his benefit. 

This is a fundamentally unfair attempt to use the sentencing process to tip 

the scales in his favor. We believe this represents the essence of substantial 

prejudice to the Commonwealth.” Miley, supra at *10. 
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noticed a possible issue with her testimony, he 

immediately halted the proceeding and discussed with 

Appellant and [his father] the potential of withdrawing 

Appellant’s guilty plea. [Plea counsel] verified that this 

moment was the first time that the possibility of 

withdrawing the plea was discussed, and [Appellant’s 

father] further corroborated that fact in his testimony. 

[Plea] counsel acted as soon as the potential fair and just 

reason surfaced, so it cannot be said that he was 

ineffective for failing to move for the withdrawal at an 

earlier time. 

Additionally, the evidence revealed at Appellant’s PCRA 

Hearing further points to the fact that Appellant did not 

ask [plea] counsel to withdraw his plea at an earlier date.... 

Despite Appellant’s testimony that he requested his [plea] 

counsel to withdraw his plea at a prior point, his account is 

belied by both [plea counsel’s] and [Appellant’s father’s] 

recollection that the Sentencing Hearing was the first 

instance where the subject of withdrawing Appellant’s 

guilty plea was discussed. As such, [plea] counsel raised 

the motion before the [c]ourt at the earliest opportunity, 

and we therefore submit that the underlying claim is 

meritless. Additionally, [plea] counsel possessed a 

reasonable basis for raising the Motion at the given time. 

(PCRA Court Opinion at 14-15). The record supports the court’s reasoning. 

Plea counsel could not have filed the motion to withdraw the guilty plea on 

the grounds asserted, at an earlier time. Further, the PCRA court was free 

to reject Appellant’s testimony that he requested counsel to withdraw the 

plea for other reasons prior to the June 25, 2010 sentencing hearing. See 

Knighten, supra. 

Additionally, Appellant’s claim that counsel should have sought to 

withdraw Appellant’s plea based on the OWL report, even absent a request 

from Appellant, is illogical given that counsel had explained the findings of 
J-S51009-16

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the OWL report to Appellant before Appellant decided to plead guilty. The 

trial court’s single omission of the word “deviate” during the plea colloquy 

provided no basis for withdrawal either, where the totality of the 

circumstances showed Appellant understood the elements and factual basis 

of the IDSI charge. Therefore, counsel’s timing on the motion to withdraw 

the guilty plea was reasonable and did not constitute ineffective assistance. 

See Kimball, supra. Based on the foregoing, none of Appellant’s 

challenges to counsel’s effectiveness merit relief. Accordingly, we affirm. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/3/2016