J-A19012-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NELSON MO MCALLISTER II : : Appellant : No. 427 WDA 2025
Appeal from the Judgment of Sentence Entered April 4, 2024 In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000803-2022
BEFORE: BOWES, J., STABILE, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED: November 4, 2025
Appellant, Nelson Mo McAllister II, appeals nunc pro tunc from the
judgment of sentence of five to ten years’ imprisonment, imposed following
his guilty plea to one count of statutory sexual assault, a felony of the first
degree (18 Pa.C.S. § 3122.1(b)). Appellant maintains that the trial court
erred in failing to permit him to withdraw his plea. We affirm.
This case has a complicated procedural history. On November 15, 2022,
the Commonwealth filed an information charging Appellant with 20 counts
each of involuntary deviate sexual intercourse, statutory sexual assault,
aggravated indecent assault, and indecent assault for incidents involving
Appellant’s sexual contact with the fifteen-year-old victim, T.B., who had been
residing with Appellant and his wife. The Commonwealth filed an amended
information on October 11, 2023, withdrawing many counts, yet still charging
Appellant with single counts of involuntary deviate sexual intercourse, J-A19012-25
statutory sexual assault, aggravated indecent assault, and indecent assault.1
Appellant was represented by Dennis A. Elisco, Esquire, of the Office of the
Public Defender of Lawrence County.
After negotiations with the Commonwealth, Appellant entered a guilty
plea on October 12, 2023, to a single charge of statutory sexual assault with
the agreement that his sentence would be 6 to 12 years’ incarceration. N.T.
Guilty Plea, 10/12/23, at 4. The trial court scheduled a sentencing hearing to
occur after Appellant received an assessment to determine if he was a sexually
violent predator (SVP). Prior to the sentencing hearing, however, Appellant
filed a motion seeking to withdraw his guilty plea, claiming his innocence and
asserting that he had new evidence — specifically, that T.B. had recanted her
accusation. Motion to Withdraw Guilty Plea, 1/12/24.
The trial court conducted a hearing on Appellant’s motion on January
25, 2024. Appellant planned to call his wife to testify at this hearing, but the
trial court determined that it was in her best interests to be represented by
counsel. Accordingly, the trial court appointed counsel for Mrs. McAllister and
scheduled a new hearing for March 4, 2024. N.T. Hearing, 1/25/24, at 42.
On the new hearing date, the parties decided not to proceed with the
motion to withdraw Appellant’s plea. N.T. Hearing, 3/4/24, at 2. Appellant
explained to the trial court that he now wished to withdraw his motion to
withdraw his plea and, instead, accept the Commonwealth’s new plea offer, ____________________________________________
1 18 Pa.C.S. §§ 3123(a)(7), 3122.1(b), 3125(a)(8), and 3126(a)(8), respectively.
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which lessened his sentence to a term of 5 to 10 years’ imprisonment. Id. at
3. The Commonwealth further agreed that they were not pursuing an SVP
designation for Appellant. Id. at 5. Also at this hearing, Appellant was asked
to reaffirm the responses he had previously given regarding his plea;
Appellant stated that he was acting voluntarily and of his own free will. Id.
at 5-7.
Because Appellant withdrew his request to withdraw his plea, the court
scheduled a sentencing hearing for April 4, 2024. On that date, the court
sentenced Appellant, pursuant to his plea agreement, to a term of 5 to 10
years’ incarceration, and awarded him credit for time served of 133 days.
Sentencing Order, 4/4/24.
Despite being represented by counsel, Appellant, pro se, sent the court
a letter that he entitled “Post[-]Sentence Motion,” which was docketed on April
22, 2024. In this document, Appellant again sought to withdraw his plea, this
time by claiming that counsel had been ineffective for failing to further
investigate text messages T.B. sent to his wife purportedly recanting the
accusations and failing to present a defense to his charges. Appellant’s letter
was properly forwarded to his attorney of record. As Appellant claimed that
his trial counsel was ineffective, Attorney Elisco filed a motion to withdraw as
Appellant’s counsel. Motion, 4/29/24. The court granted this motion and
appointed Christopher P. Lacich, Esquire, to represent Appellant. Order,
4/29/24.
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Ultimately, Attorney Lacich filed a petition on September 6, 2024, under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking
permission to file a post-sentence motion nunc pro tunc on Appellant’s behalf,
as well as a direct appeal. The court conducted a hearing on the petition, at
which both Attorney Elisco and Appellant testified. Attorney Elisco was asked
about his preparation for Appellant’s case, and expressed his concern that
Appellant’s conviction could result in a third-strike sentence of 25 years to life.
N.T. PCRA Hearing, 2/3/25, at 12-18, 21. Attorney Elisco testified that, after
receiving notice of T.B.’s text messages to Mrs. McAllister purportedly
recanting her accusations against Appellant, he filed the motion to withdraw
Appellant’s plea. Id. at 26-27. However, he subsequently withdrew the
motion to withdraw Appellant’s plea at the request of both Appellant and Mrs.
McAllister, after Appellant renegotiated his sentence with the Commonwealth.
Id. at 30.
Appellant testified that he had wanted to go to trial, but only entered
the plea because of Attorney Elisco’s statement that he could not win an
acquittal at trial and that Appellant would be sentenced to 25 years to life.
Id. at 64. Appellant stated that he admitted on the record to the facts
underlying his plea only because he wanted to get home to his family at some
point; he also asserted his innocence. Id. at 73.
Following this hearing, the trial court granted the PCRA petition,
reinstating Appellant’s post-sentence motion and direct appeal rights nunc pro
tunc. Order, 2/18/25. Appellant filed a motion to withdraw his plea nunc pro
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tunc on February 25, 2025. Both Appellant and the Commonwealth were
directed to file briefs on the matter of withdrawing Appellant’s plea, and both
complied. Thereafter, the trial court denied Appellant’s post-sentence motion
in its entirety. Trial Court Opinion and Order (TCOO), 3/21/25. Appellant
then filed a nunc pro tunc notice of appeal from his judgment of sentence on
April 9, 2025. Appellant and the trial court have each complied with Pa.R.A.P.
1925.
Appellant raises the following claim on appeal:
Whether the trial court erred and abused its discretion when it denied … Appellant’s post-sentence motion, nunc pro tunc, to withdraw his guilty plea after sentencing?
Brief of Appellant at 12.
Preliminarily, we note that the Commonwealth has asserted that
Appellant’s pro se motion, filed April 22, 2024, was untimely, citing the time
limit for filing a timely post sentence motion as 10 days after the imposition
of sentence. Pa.R.Crim.P. 720(a)(1). However, the timeliness of Appellant’s
pro se post-sentence motion is irrelevant, as the PCRA court reinstated
Appellant’s right to file a post-sentence motion nunc pro tunc on February 18,
2025, and he timely filed that motion on February 25, 2025. There is also no
issue with the timeliness of Appellant’s PCRA petition, as a PCRA petition will
be considered to be timely if filed within one year of the imposition of a
petitioner’s sentence. See 42 Pa.C.S. § 9545(b)(1) (providing that a timely
PCRA petition shall be filed within one year of the date the judgment becomes
final). Here, Appellant’s PCRA petition was clearly timely, and the trial court
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had jurisdiction to consider it and reinstate his post-sentence motion and
direct appeal rights. We therefore will address the merits of Appellant’s claim
regarding the withdrawal of his plea.
“[T]here is no absolute right to withdraw a guilty plea[.]”
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291 (Pa. 2015). We
review the denial of a post-sentence motion to withdraw a guilty plea under
an abuse of discretion standard. Commonwealth v. Gabra, 366 A.3d 1052,
1056 (Pa. Super. 2025). For this purpose, we note that an “abuse of
discretion” is not a mere error of judgment; rather, an abuse of discretion
occurs “where the judgment is manifestly unreasonable or where the law is
not applied or where the record shows that the action is the result of partiality,
prejudice, bias or ill will.” Id. at 1057. Moreover, a defendant’s request to
withdraw a guilty plea after sentencing is subject to enhanced scrutiny
because courts strive to discourage the entry of guilty pleas as sentence-
testing devices. Commonwealth v. Culsoir, 209 A.3d 433, 437 (Pa. Super.
2019) (citation omitted). “Therefore, in order to withdraw a guilty plea after
the imposition of sentence, a defendant must make a showing of prejudice
which resulted in a manifest injustice.” Id.
In determining whether a guilty plea is valid, the court will consider the
totality of the circumstances surrounding the plea. Gabra, 366 A.3d at 1057
(citation omitted). Moreover, once a defendant enters a guilty plea, it is presumed he was aware of what he was doing. A person who elects to plead guilty is bound by the statements he makes in open court while
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under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his colloquy. In assessing the voluntariness of a guilty plea, we note [that] the law does not require that [an] appellant be pleased with the outcome of his decision to enter a plea of guilty[.] All that is required is that [the] appellant’s decision to plead guilty be knowingly, voluntarily, and intelligently made.
Commonwealth v. Alameda, 339 A.3d 504, 510 (Pa. Super. 2025) (cleaned
up). When a defendant enters a guilty plea on the advice of counsel, the
voluntariness of his plea depends on whether counsel’s advice was within the
range of competence demanded of attorneys in criminal cases.
Commonwealth v. Johnson, 179 A.3d 1153, 1160 (Pa. Super. 2018)
(citation and quotation marks omitted).
A valid guilty plea colloquy must delve into the following six areas: the
nature of the charges, the factual basis for the plea, the defendant’s right to
a jury trial, the presumption of innocence, the appropriate sentencing ranges
on the charges faced by the defendant, and the court’s power to deviate from
the Commonwealth’s recommended sentence. Commonwealth v. Reid, 117
A.3d 777, 782 (Pa. Super. 2015); see also Pa.R.Crim.P. 590, Cmt. Any
written plea colloquy completed and signed by the accused may supplement
any oral, on-the-record, examination by the court. Reid, supra. A defendant
challenging his plea has the burden to establish that it was not entered
knowingly, understandingly or voluntarily. Id. at 783. Furthermore, “[t]he
entry of a negotiated plea is a ‘strong indicator’ of the voluntariness of the
plea.” Id.
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Here, Appellant argues that his guilty plea “was induced by plea counsel
and … entered by him unknowingly, unintelligently, involuntarily and without
full understanding.” Brief of Appellant at 14. Our review of Appellant’s claim
must begin with a consideration of his initial guilty plea hearing. There, the
Commonwealth presented the negotiated plea agreement to the court as
follows:
[THE COMMONWEALTH]: Your Honor, … [Appellant] will enter a guilty plea today to count four of the information, statutory sexual assault. It is graded as a felony of the first degree. The Crimes Code reference is [18 Pa.C.S. §] 3122.1(b)…. The recommendation will be incarceration of a period of not less than six years nor more than twelve years, [in a] state correctional institution. This would entail sex offender rules and treatment upon parole. [Appellant] will have to register with SORNA[2] for the balance of his natural life. There’s also a no contact provision, of course, Your Honor, involving the minor victim in this case[.]
N.T. Guilty Plea at 4. Appellant testified under oath at this hearing that he
understood he was pleading guilty to one count of statutory sexual assault, a
felony of the first degree. Id. at 5. Appellant stated under oath that he had
completed the written colloquy form with counsel, his answers were truthful,
and they were made of his own free will. Id. at 6-7. Appellant also testified
that no one had threatened him or promised him anything in exchange for the
plea. Id. at 7. He was informed of the maximum sentence on that charge,
and stated he understood that the judge was not bound to accept his
negotiated agreement with the Commonwealth. Id. Appellant was also ____________________________________________
2 Sex Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10– 9799.41.
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informed about his right to have a jury trial, and that he was presumed to be
innocent of the charges. Id. Importantly, Appellant also admitted on the
record that he committed the offense charged as follows:
Q. Sir, as to the count you’re pleading guilty to, the Commonwealth requires an admission from you to the criminal conduct that’s alleged in count four, and it’s alleged that on or about March – I’m giving a general timeframe, but on or about March of 2022, that you did engage in sexual intercourse with a minor female, [T.B.]; at the time, she was less than 16 years of age and you were 11 or more years older than she was. Do you admit that, sir? A. Yes.
Id. at 8. Appellant answered affirmatively when asked if he had discussed
the plea with his attorney, had reviewed the evidence with his attorney, and
had discussed his potential sentence. Id. at 8-9. Finally, Appellant was asked
if he was satisfied with the services of his attorney, to which he replied that
he was. Id. at 9. Registration requirements under SORNA were also
explained to Appellant. Id. at 11-21. Appellant indicated at that time that he
had no questions about the proceedings. Id. at 21.
At the hearing on Appellant’s motion to withdraw his plea on March 4,
2024, the Commonwealth explained:
[THE COMMONWEALTH]: After discussions with counsel and counsel’s consultation with [Appellant], my understanding of today’s proceeding is [Appellant] will withdraw his Motion to Withdraw Guilty Plea. The Commonwealth has proposed an alternative resolution in terms of a sentence recommendation. The original plea involved incarceration of not less than six nor more than twelve years. Our recommendation will now be not less than five nor more than ten years. All other terms of the prior guilty plea would then also apply.
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N.T. Hearing, 3/4/24, at 3. The Commonwealth also confirmed that it
recommended a sentence in the standard range of the sentencing guidelines.
Id. Appellant agreed that the Commonwealth accurately recited the new
agreement. Id. at 4. Also at this hearing, Appellant was asked if he had
provided truthful answers at the guilty plea colloquy, to which Appellant
responded that he had. Id. at 5. Appellant was further asked if he wished to
reaffirm the answers from the prior colloquy. Id. Appellant again responded
in the affirmative. Id. Appellant also affirmed that he understood the
proceedings and was withdrawing his request to withdraw his plea because of
the change in the Commonwealth’s sentencing recommendation. Id. at 7.
Thereafter, the court noted the revision to the plea agreement, granted the
motion to withdraw Appellant’s motion to withdraw his plea, and set
sentencing for April 4, 2024. Id. at 8.
At the sentencing hearing, the Commonwealth explained that even
though the completed SVP assessment found that Appellant met the criteria
for an SVP, it would not be seeking such a designation for Appellant based on
the history of the case and the plea negotiations. N.T. Sentencing, 4/4/24, at
4. The Commonwealth noted that it had informed T.B. and her guardian of
the proposed resolution of the case, and they were satisfied with it. Id. at 5.
On the date of sentencing, T.B. had been placed in a mental health facility.
Id. Further, Appellant’s counsel informed the trial court that, in his view,
Appellant had two reasons for agreeing to the revised plea agreement—he
wished to alleviate any further trauma inflicted on the victim, and he also
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wanted to avoid a third-strike sentence of 25 years to life. Id. at 8. Appellant
also testified that he wanted to help his family, and ensure that he could
eventually come home. Id. at 9. After this testimony, the motion to withdraw
Appellant’s plea was withdrawn.
The hearing on Appellant’s PCRA petition occurred on February 3, 2025.
Therein, Attorney Elisco testified that both he and Appellant were aware of the
incriminating evidence in the case; police had a recording of a telephone call
between Appellant and T.B., in which Appellant admitted to having sexual
intercourse with T.B. N.T. PCRA Hearing, 2/3/25, at 16-18. Police also had
possession of a vibrator, on which DNA was found from both Appellant and
T.B. Id. at 18. Appellant also had two prior robbery convictions, which raised
crimen falsi concerns with regard to Appellant’s testifying at trial and heavily
impacted his sentence. Id. at 18-19. Attorney Elisco explained his
professional evaluation of Appellant’s case:
The insurmountable obstacles were two-fold. The consensual telephone conversations were fatal to our defense. If they, for some reason, weren’t fatal, the corroborating DNA evidence entirely, in my opinion, in my assessment, sealed his fate. In my opinion, I would not have expected to win the trial.
Id. at 20-21. Because of Appellant’s criminal record, he faced a third-strike
sentence which could have been 25 years to life. Id. at 21. Attorney Elisco
stated that these factors caused him to approach Appellant about pleading
guilty. Id. Attorney Elisco testified that he “was very, very, very worried for
him if we went to trial.” Id. at 26.
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With respect to the text message which underlies Appellant’s claim that
T.B. allegedly admitted to fabricating the allegations against Appellant,
Attorney Elisco acknowledged that he had considered whether T.B.’s
recantation was authentic. In that vein, T.B.’s guardian testified under oath
that T.B. had admitted to sending the message, but also claimed that she did
so because she didn’t want Mrs. McAllister—the woman she called her “step-
mom”—to hate her. Id. at 27-29. Thus, Attorney Elisco did not think that
T.B. had actually recanted her accusation; rather, she was trying to placate
her step-mom. Id. at 29-10. Nevertheless, Attorney Elisco testified that after
he and Appellant had renegotiated with the Commonwealth for a lesser
sentence, both Appellant and his wife were “insistent” that counsel withdraw
the motion to withdraw Appellant’s plea. Id. at 30. Attorney Elisco was
adamant that Appellant was happy with the new plea offer. Id.
Given this record, we discern no merit in Appellant’s claim that his plea
was induced by counsel, or that it was involuntarily, unknowing, or
unintelligent. Additionally, we reject his claim that his plea was not knowingly,
intelligently, or willingly made based on the following exchange:
[Appellant’s counsel]: And so I guess though my question is, your testimony sort of infers, was it your will or his will not to go to trial, ultimately?
[Attorney Elisco]: I would think it was more my will, but he definitely consented to my recommendation. Ultimately, it’s up to him[.]
Id. (emphasis added). Appellant argues that this exchange indicates that he
did not enter into a knowing and intelligent plea. Appellant argues that the
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“extraordinary” testimony given by counsel above warrants extraordinary
relief, i.e., permitting him to withdraw his plea and proceed to trial. Brief of
Appellant at 21. We do not agree.
Appellant cannot now contradict the statements he made, under oath,
during his plea colloquy in an attempt to withdraw his plea. As stated above,
we presume that Appellant was aware of what he was doing when he entered
his plea. Alameda, supra. Appellant is bound by his prior statements from
both the written and oral plea colloquies that his answers in the colloquy were
truthful and the product of his own free will. Id. See also N.T. Guilty Plea at
6-7. Appellant admitted to having sexual contact with T.B. Id. at 8. Appellant
also stated in court that he was satisfied with the advice of his counsel. Id.
at 9. In addition, Appellant was directly involved with his plea negotiations,
which is a strong indicator that his plea was voluntary. Reid, 117 A.3d at
783.
The trial court explained why it did not grant Appellant’s request to
withdraw his plea as follows:
The record demonstrated [Appellant] was fully advised of his rights and the elements of the charges asserted against him. At the time he entered his plea, [Appellant] stated he was satisfied with the services rendered by Attorney Elisco. [Appellant] only asserted his innocence after his wife received text messages from the victim, which [T.B.’s guardian] explained was the victim’s attempt to appease [Appellant’s] wife in hopes of reconciling. Even after those text messages, [Appellant] affirmed his guilt during the hearing on March 4, 2024. Furthermore, [Appellant] failed to set forth a plausible defense to support his assertion of innocence despite the victim’s text messages. As Attorney Elisco testified, the Commonwealth had recorded telephone
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conversations and DNA evidence which incriminated [Appellant]. [Appellant] failed to provide anything of substance to refute that evidence especially when viewed in light of him affirming his guilt under oath before this [c]ourt on two occasions.
Instead, [Appellant] relies on the testimony of Attorney Elisco when asked whose will it was to waive [Appellant’s] right to proceed to trial and enter a guilty plea, he stated, “I think it was more my will, but he definitely consented to my recommendation. Ultimately, it’s up to him[.]” In that statement, Attorney Elisco was indicating it was his strong recommendation to enter a guilty plea as opposed to going to trial[,] which the [c]ourt finds reasonable based upon the evidence the Commonwealth intended to present at trial. Moreover, Attorney Elisco clearly explained it was ultimately [Appellant’s] decision to enter the guilty plea. Attorney Elisco’s statement certainly does not provide a basis for allowing [Appellant] to withdraw his guilty plea in this matter as he was provided with the opportunity on two occasions to assert his innocence before this [c]ourt and he failed to do so.
TCOO at 12-13.
After review, we discern no abuse of discretion in the trial court’s
determination that Attorney Elisco’s testimony merely indicated that he
strongly recommended that Appellant plead guilty, and that counsel’s
recommendation was reasonable given the evidence in this case. Moreover,
the record amply supports that Appellant’s decision to plead guilty was
knowing, intelligent, and voluntary based on the statements he made during
the guilty plea colloquy and hearings discussed supra, which contradict his
instant assertions on appeal, and convince us that no manifest injustice
occurred by the court’s denying his post-sentence motion to withdraw his
guilty plea. See Alameda, supra (concluding that a plea was knowingly,
intelligently, and voluntarily entered where the appellant’s claim was
contradicted by the sworn statements he provided before the trial court; the
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court found no manifest injustice was present that required a withdrawal of
the plea); see also Commonwealth v. Felix, 303 A.3d 816, 821 (Pa. Super.
2023) (finding that a guilty plea was voluntarily, intelligently, and knowingly
entered where the defendant had previously admitted that he understood the
nature of the charges he faced, the elements of the charges and potential
sentences were sufficiently explained, and the plea colloquy otherwise
conformed to the areas of inquiry as set forth in the comment to Pa.R.Crim.P.
590); Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa. Super. 2018)
(stating that a defendant is bound by his statements at his plea colloquy and
may not assert grounds for withdrawing the plea that contradict the
statements made when entering the plea).
Accordingly, finding no error, we affirm the trial court’s denial of
Appellant’s post-sentence request to withdraw his guilty plea.
Judgment of sentence affirmed.
DATE: 11/4/2025
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