Com. v. Cole

• Decision Date: 30 August 1989
• Citation: 564 A.2d 203,387 Pa.Super. 328
• Parties: COMMONWEALTH of Pennsylvania v. Michael COLE, Appellant. 2673 PHILA. 1986
• Court: Pennsylvania Superior Court

Page 203

564 A.2d 203

387 Pa.Super. 328

COMMONWEALTH of Pennsylvania v. Michael COLE, Appellant.

2673 PHILA. 1986

Superior Court of Pennsylvania.

Argued June 3, 1988.

Filed Aug. 30, 1989.

Noah Gorson, Merion Station, for appellant.

Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com.

Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, BECK, KELLY, POPOVICH and MELINSON, JJ.

WIEAND, Judge:

Michael Cole entered a negotiated plea of guilty to charges of robbery and criminal conspiracy. Before he had been sentenced, however, Cole filed a motion to withdraw his guilty plea, alleging that it had not been entered voluntarily and that he was innocent of the charges. Following an evidentiary hearing, the trial court denied the motion to withdraw the plea and sentenced Cole to serve two concurrent terms of imprisonment, each for not less than three and one-half (3 1/2) years nor more than ten (10) years. Cole then filed a motion, pursuant to Pa.R.Crim.P. 321, ¹ challenging the trial court's denial of his motion to withdraw the guilty plea. When this motion was denied, Cole filed a direct appeal from the judgment of sentence. He argues that the trial court abused its discretion when it denied the motion to withdraw his plea of guilty.

Appellant, along with his co-defendant, Earl Robinson, had been arrested on June 27, 1985 and charged with robbery, aggravated and simple assault, theft, receiving stolen property and criminal conspiracy in connection with the robbery and beating of two elderly women in a restroom at the Greyhound Bus terminal in Philadelphia. Trial on these charges was originally scheduled for December 4, 1985, but because of continuances, trial did not commence until July 14, 1986, when the trial court heard pre-trial motions which had been filed by appellant and co-defendant Robinson. After defendant's motion to dismiss pursuant to Pa.R.Crim.P. 1100 had been denied, the Commonwealth proceeded to present evidence in response to a motion by defendant to suppress evidence. After receiving testimony from two Commonwealth witnesses, the court continued the hearing until the following morning to allow Ms. Essie Dooley, one of the robbery victims and an essential Commonwealth witness, ² to travel from Georgia, where she was caring for a sick father, to testify as a Commonwealth witness. ³

On the morning of July 15, 1986, after Dooley's presence had become known to appellant but before she had testified, the co-defendant, Earl Robinson, entered a plea of guilty. Appellant then also sought to plead guilty and, through counsel, negotiated an agreement with the Commonwealth whereby he would plead guilty to charges of robbery and criminal conspiracy, in exchange for which the Commonwealth would nol pros the remaining charges against him and refrain from making any recommendation at sentencing. Following an extensive colloquy, the trial court accepted appellant's plea and scheduled sentencing for September 17, 1986. The Commonwealth thereupon dismissed its witnesses, and Dooley returned to Georgia. On August 26, 1986, more than a month after pleading guilty, appellant filed a motion to withdraw his guilty plea. ⁴ This motion, as we have observed, was denied after hearing.

Appellant argues that his assertion of innocence in the motion to withdraw his guilty plea provided the trial court with a fair and just reason to allow the withdrawal of the plea and that the court's denial of that motion, therefore, was an abuse of discretion. We disagree with appellant's reasoning and, for the reasons which follow, affirm the judgment of sentence.

The applicable law was set forth by the Supreme Court in Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973) as follows:

Although there is no absolute right to withdraw a guilty plea, properly received by the trial court, it is clear that a request made before sentencing ... should be liberally allowed. See United States ex rel. Culbreath v. Rundle, 466 F.2d 730 (3d Cir.1972); United States v. Young, 424 F.2d 1276 (3d Cir.1970); United States v. Stayton, 408 F.2d 559 (3d Cir.1969); Pa.R.Crim.P. 320; ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1 (Approved Draft, 1968); Note, Pre-Sentence Withdrawal of Guilty Pleas in Federal Courts, 40 N.Y.U.L.Rev. 759 (1965). In United States ex rel. Culbreath v. Rundle, supra, the Third Circuit stated:

"It has been recognized under Pennsylvania and Federal law that a trial judge has discretion to refuse a request to retract a plea of guilty since there is no absolute right to withdraw such a plea. However, a request made before sentencing has been generally construed liberally in favor of the accused."

Id. at 732 of 466 F.2d (emphasis added) (footnotes omitted).

The ABA Standards are in complete harmony with this view. The standards state:

"(b) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty or nolo contendere as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea."

ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1(b) (Approved Draft, 1968). See also Commonwealth v. Neely, 449 Pa. 3, 4, 295 A.2d 75, 76 (1972) (Roberts, J., concurring opinion).

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." United States v. Stayton, supra at 561. 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." ABA Standards Relating to Pleas of Guilty, supra. As the Third Circuit noted:

"The liberal rule for withdrawal of a guilty plea before sentence is consistent with the efficient administration of criminal justice. It reduces the number of appeals contesting the 'knowing and voluntariness' of a guilty plea, and avoids the difficulties of disentangling such claims. It also ensures that a defendant is not denied a right [to] trial by jury unless he clearly waives it."

United States v. Young, 424 F.2d 1276, 1279 (3d Cir.1970).

Applying these standards to the facts presented, it must be concluded that the trial court should have allowed withdrawal of appellant's guilty plea. Appellant stated, as his reason for the request, made before the degree of guilt hearing and prior to adjudication and sentence, "I don't want to plead guilty to nothing I didn't do." Obviously, appellant, by this assertion of innocence--so early in the proceedings--offered a "fair and just" reason for withdrawal of his plea. Moreover, on this record there is not even the slightest suggestion that the prosecution was in any sense "substantially prejudiced by reliance upon the defendant's plea." ABA Standards Relating to Pleas of Guilty supra.

Id. at 190-192, 299 A.2d at 271-272 (emphasis in original). ⁵

The Superior Court has followed Forbes and has held that an assertion of innocence may constitute a fair and just reason for the pre-sentence withdrawal of a guilty plea. See: Commonwealth v. Ortiz, 334 Pa.Super. 117, 482 A.2d 1110 (1984); Commonwealth v. Kay, 330 Pa.Super. 89, 478 A.2d 1366 (1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 2009, 85 L.Ed.2d 293 (1985); Commonwealth v. Whittall, 304 Pa.Super. 258, 450 A.2d 669 (1982); Commonwealth v. Boofer, 248 Pa.Super. 431, 375 A.2d 173 (1977). Indeed, where a defendant has asserted his innocence and the Commonwealth has been unable to show substantial prejudice, it has been held to be an abuse of discretion for a trial court to deny a pre-sentence petition for withdrawal of a guilty plea. See: Commonwealth v. Woods, 452 Pa. 546, 307 A.2d 880 (1973); Commonwealth v. Forbes, supra; Commonwealth v. Ortiz, supra; Commonwealth v. Boofer, supra.

However, a motion to withdraw a guilty plea prior to sentencing will generally be disallowed where the Commonwealth will be substantially prejudiced by allowing the same. At the hearing on appellant's motion to withdraw his guilty plea, the Commonwealth argued that appellant had waited to enter a plea of guilty until it had become clear that the complaining witness, Ms. Dooley, had appeared to testify against him and that appellant only sought to withdraw his plea after Ms. Dooley had returned to Georgia. He did so, the Commonwealth argued, in hope that the Commonwealth would not be able "to fly its witness back up from Georgia." The trial court agreed with the Commonwealth, concluding that "[t]he Commonwealth, as I understand it, has great problems."

A criminal defendant will not be permitted to play fast and loose with the guilty plea process in order to delay prosecution or jeopardize the Commonwealth's ability to prove guilt. Here, the appellant entered a guilty plea only after it became apparent that the Commonwealth had been able to bring Dooley from Georgia to Philadelphia to testify against him. To permit him to withdraw his guilty plea after the witness had returned to her home in Georgia would be to permit appellant to use his motion to withdraw for the improper purpose of gambling on the Commonwealth's ability to produce the witness for a second trial. This is the type of prejudice to the Commonwealth against which the rule was intended to protect. The trial court did not abuse its discretion when, under such circumstances, it denied appellant's motion to withdraw his plea of guilty. See: Commonwealth v. Ross, 498 Pa. 512, 447 A.2d 943 (1982) (request to withdraw guilty plea was properly denied when it had been made after the dismissal of key Commonwealth witnesses in reliance on the plea); Commonwealth v....