J-A04030-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
DEREK C. SEIDERS :
:
Appellant : No. 708 MDA 2024
Appeal from the Judgment of Sentence Entered April 22, 2024 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0001396-2022
BEFORE: LAZARUS, P.J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY NICHOLS, J.: FILED: MAY 22, 2025
Appellant Derek C. Seiders appeals from the judgment of sentence
imposed after Appellant entered a plea of nolo contendere to one count of
rape and one count of simple assault. On appeal, Appellant challenges the
trial court’s denial of his pre-sentence motion to withdraw the plea. After
careful review, we affirm on the basis of the trial court’s opinion.
Appellant was initially charged with one count of rape, one count of
aggravated indecent assault, one count of incest, one count of sexual assault,
one count of corruption of minors, two counts of endangering the welfare of
children, and one count of simple assault.1 See Crim. Information, 8/8/22.
The matter was listed for a jury trial and, on the date scheduled for trial,
Appellant entered a plea of nolo contendere to one count of rape and one
____________________________________________
1 18 Pa. C.S. §§ 3121(a)(1), 3125(a)(7), 4302(b)(1), 3124.1, 6301(a)(1)(ii),
4304(a)(1), and 2701(a)(1), respectively.
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count of simple assault. See Order, 10/16/23. In its Rule 1925(a) opinion,
the trial court summarized the facts underlying the rape and simple assault
charges as follows:
On or about July 4, 2019, through December 31, 2019, in the area of 4756 Enola Road, on three occasions [Appellant] forcibly had sex with the victim L.J.H., Appellant’s daughter, who was 12 and 13 years old at the time. The first incident occurred on the 4th of July where he forcibly had vaginal sex with her. The second incident occurred towards the end of summer, in which [Appellant] came into her room, covered her mouth, held her down, and forcibly had vaginal intercourse with her. The third occasion, [Appellant] took the victim to his room, bound her hands and feet, and forcibly had oral sex with her.
* * *
At the time, the juvenile, L.B.H., Appellant’s son, was living in the home. [Appellant] would strike him causing him to bleed on several occasions. . . . L.B.H. was 9 years old at the time. . . . The strikes were in the face.
Trial Ct. Op., 7/24/24, at 2 (some formatting altered and citation omitted).
However, on February 5, 2024, Appellant filed a pre-sentence motion to
withdraw his plea. See Mot. to Withdraw No Contest Plea, 2/5/24. The trial
court held a hearing on February 26, 2024, and in an order filed the following
day, the trial court denied Appellant’s motion to withdraw his plea. See Order,
2/27/24. On April 22, 2024, the trial court sentenced Appellant to a term of
five to fifteen years of incarceration, followed by three years of probation on
the rape charge. See Sentencing Order, 4/22/24, at 1. The trial court
imposed a concurrent term of two years’ probation for the simple assault
charge. See id. at 2. This resulted in an aggregate sentence of five to fifteen
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years of incarceration, followed by three years of probation. See id. at 1-2.
Further, Appellant was determined to be a sexually violent predator (SVP),2
and he was ordered to comply with the lifetime reporting requirements
pursuant to the Sex Offender Registration and Notification Act3 (SORNA). See
id. at 1. Appellant filed a timely appeal, and both the trial court and Appellant
complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue:
Whether the honorable trial court erred in denying [Appellant’s] pre-sentence motion to withdraw nolo contendere plea?
Appellant’s Brief at 7 (some formatting altered).
It is well settled that a criminal defendant “has no absolute right to
withdraw a guilty plea; rather, the decision to grant such a motion lies within
the sound discretion of the trial court.” Commonwealth v. Muhammad,
794 A.2d 378, 382 (Pa. Super. 2002) (citation omitted). We review the denial
of a motion to withdraw a guilty plea for an abuse of discretion.
Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013).4 “An abuse
____________________________________________
2 Appellant was designated an SVP in a separate order entered on April 22,
2024.
3 42 Pa.C.S. §§ 9799.10-9799.75.
4 Our Supreme Court has explained that “[w]hen a defendant enters a plea of
nolo contendere, he technically does not admit guilt. However, for purposes of a criminal case, a plea of nolo contendere is equivalent to a plea of guilty.” Commonwealth v. Norton, 201 A.3d 112, 114 n.1 (Pa. 2019) (citation omitted).
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of discretion is not a mere error in judgment but, rather, involves bias, ill will,
partiality, prejudice, manifest unreasonableness, and/or misapplication of
law.” Id. (citation omitted).
The standards required for withdrawing a guilty plea differ “depending
on whether the defendant seeks to withdraw the plea before or after
sentencing.” Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017).
In the context of a pre-sentence motion to withdraw a plea, our Supreme
Court has stated:
[T]here is no absolute right to withdraw a guilty plea; trial courts have discretion in determining whether a withdrawal request will be granted; such discretion is to be administered liberally in favor of the accused; and any demonstration by a defendant of a fair- and-just reason will suffice to support a grant, unless withdrawal would work substantial prejudice to the Commonwealth.
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015)
(citation and footnote omitted); see also Pa.R.Crim.P. 591(A) (stating that
“[a]t any time before the imposition of sentence, the court may, in its
discretion, permit . . . the withdrawal of a plea”).
A fair and just reason exists where the defendant makes claim of innocence that is at least plausible. Carrasquillo, 115 A.3d at 1292. “Stated 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.” Norton, 201 A.3d at 120-21 (quoting Carrasquillo, 115 A.3d at 1292). “[T]rial courts have discretion to assess the plausibility of claims of innocence.” Id. at 121.
5
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Commonwealth v. Garcia, 280 A.3d 1019, 1023 (Pa. Super. 2022) (footnote
omitted).
This Court has explained that “the law does not require that the
defendant be pleased with the outcome of his decision to enter a plea of guilty:
All that is required is that his decision to plead guilty be knowingly, voluntarily
and intelligently made.” Commonwealth v. Reid, 117 A.3d 777, 783 (Pa.
Super. 2015) (citations omitted and formatting altered). “A valid plea colloquy
must delve into six areas: 1) the nature of the charges, 2) the factual basis of
the plea, 3) the right to a jury trial, 4) the presumption of innocence, 5) the
sentencing ranges, and 6) the plea court’s power to deviate from any
recommended sentence.” Id. at 782 (citations and quotation marks omitted).
“Furthermore, nothing in [Pa.R.Crim.P. 590] precludes the supplementation
of the oral colloquy by a written colloquy that is read, completed, and signed
by the defendant and made a part of the plea proceedings.” Commonwealth
v. Bedell, 954 A.2d 1209, 1212-13 (Pa. Super. 2008) (citation omitted); see
also Pa.R.Crim.P. 590, cmt.5 Importantly, “[a] person who elects to plead
guilty is bound by the statements he makes in open court while under oath
____________________________________________
5 The record reflects both a written and oral plea colloquy. See Written Colloquy, 10/16/23, at 1-3; N.T., 10/16/23, at 3-15. On appeal, Appellant has not alleged that the trial court failed to delve into the six areas stated in Reid or presented an issue that the colloquy was inadequate. Accordingly, any challenge to the validity of the plea on the bases of those six areas is waived on appeal. See Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not included in the statement . . . are waived”); see also Muhammad, 794 A.2d at 382 n.9 (holding that the appellant waived claim concerning the adequacy of his plea colloquy by failing to include it in his Rule 1925(b) statement).
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and he may not later assert grounds for withdrawing the plea which contradict
the statements he made at his plea colloquy.” Commonwealth v. Pollard,
832 A.2d 517, 523 (Pa. Super. 2003) (citation omitted); see also
Commonwealth v. Kahl, 976 WDA 2024, 2025 WL 1002174, at *4 (Pa.
Super. filed Mar. 31, 2025) (unpublished mem.) (explaining that where the
appellant has been “sentenced in accordance with the plea, [the appellant’s]
knowing assent to the factual basis of his . . . conviction is binding, and it
therefore may not be contradicted”).6
When reviewing the trial court’s ruling on a pre-sentence motion to
withdraw a plea, we review the trial court’s exercise of discretion as follows:
When a [trial] court comes to a conclusion through the exercise of its discretion, there is a heavy burden [on the appellant] to show that this discretion has been abused. An appellant cannot meet this burden by simply persuading an appellate court that it may have reached a different conclusion than that reached by the trial court; rather, to overcome this heavy burden, the appellant must demonstrate that the trial court actually abused its discretionary power. An abuse of discretion will not be found based on a mere error of judgment, but rather exists where the [trial] court has reached a conclusion which overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. Absent an abuse of that discretion, an appellate court should not disturb a trial court’s ruling.
* * *
[I]t is important that appellate courts honor trial court[s’] discretion in these matters, as trial courts are in the unique position to assess the credibility of claims of innocence and
____________________________________________
6 See Pa.R.A.P. 126(b) (noting that unpublished memorandum decisions of
the Superior Court filed after May 1, 2019, may be cited for their persuasive value).
7
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measure, under the circumstances, whether defendants have made sincere and colorable claims that permitting withdrawal of their please would promote fairness and justice.[]
Garcia, 280 A.3d at 1023-24 (some formatting altered) (quoting Norton, 201
A.3d at 120, 121).
Following our review of the record, the parties’ briefs, and relevant legal
authority, we affirm on the basis of the trial court’s opinion. See Trial Ct. Op.,
7/24/24, at 1-12. The trial court thoroughly addressed Appellant’s claim of
error, and we discern no abuse of discretion in the trial court’s denial of
Appellant’s motion to withdraw his nolo contendere plea. See Gordy, 73 A.3d
at 624; Muhammad, 794 A.2d at 382. For these reasons, we affirm.7
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 05/22/2025
____________________________________________
7 The parties are directed to attach a copy of the trial court’s opinion in the
event of further proceedings.
CP-21-CR-0001306=202`2 - SEIDERS CP-21-CR-0001396-2022 SEIDERS -- DEREK DEREK -- OPINION PURSUANT TO PA.R.A.P.9/r408/2210#6.06 GM. 12 PA.R.A.P.1C98&!4ttLdEQ4/$?Mngi•-4kbWt:
COMMONWEALTH COMMON WEALTH IN THE COURT OF THE COURT OF COMMON
COMMON PLEAS OF
PLEAS OF
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OPINION PURSUANT
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Peck, J:,;July • 23 ,2024—
': co co c
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,1e L,,, Procedural Procedural History
History
On Qn October October 16, 2023,
2023, the morning
morning he
he was
was set
set to go to trial,
to go trial, Appellant Appellant entered aa
nolo contendere plea to Count 1, I, Rape by Forcible Compulsion, Compulsion, and Count 7,
7, Simple
Simple
Assault;:ir., Assault, in satisfaction of the remaining charges at this docket.' About a a month later,
later,
counsel-entered his appearance, new counsel appearance,' and on February February 5, 2024,
2024, new counsel filed aa Motion to .Withdraw Motion to . Withdraw No Contest Plea on Appellant's behalf.' Following Following a hearing
a hearing
thereon on February 26, 2024, we denied the motion.'
held"Ttiereon motion. We sentenced Appellant Appellant
on on`April`22;•2024 .April22, '
2024 -to an aggregate term of 5 to 15 5to a state correctional facility I5 years in a facility . ' ' and,a;consecutive. and a cosecutive n period of 33years of supervised probation.' Appellant Appellant filed aatimely
timely
4
Notice. Notice pfAppeal of Appeal on May 17, 2024 and, subsequently, aaConcise Statement of Matter Mater
Complaned'ofon Complained , of on Appeal Pursuant to Rule 1925(b), 1925(b), raising
raising the following
following issue:
Whether Whether this denying Defendant's this Honorable Court erred by denying Defendant's Motion Motion to
to Withdraw
Withdraw
guilty plea based upon the totality of the issues ssues raised in support
support of his motion?
More specifically, including but not limited to, whether Defendant was properly properly
advised about his potential sentence and parole date and whether Defense witnesses
1Order of Court, In re: No Order of Count, In re: No Contest Plea/Directed to Appear, Appear, October 16, 2023 (Peck, 16, 2023 J.);
(Peck, J);
Transcript of Proceedings, In In re: No No Contest Plea,
Plea, October 16, 2023, at 2 (Peck, 16, 2023, J.) (hereinafter (Peck, J.) (hereinafter
"N.T. Plea NT. Pea at "). The at "). The remaining charges in the Information were Aggravated Aggravated Indecent
Assault, Incest of aaMinor, Sexual Assault, Corruption of Minors, Minors, and Endangering
Endangering the Welfare
Children. Criminal Information, of Children. Information, filed August August 8,
8, 2022.
2 Entry of Appearance, Entry of Appearance, filed filed November
November 15, 15, 2023.
2023.
3Motion Motion toto Withdraw Withdraw NoNo Contest Plea, Plea, filed
filed February
February 5, 2024.
2024
In 4 In re:
re: Motion Motion to Withdraw
Withdraw No No Contest PleaPlea Denied/Oral Denied/Oral Request
Request to Use
Use Commonwealth's
Commonwealth's
Resources Granted/Sentence and Resources and SVP SVP Hearing
Hearing Continued/Commonwealth's Motion Expert Motion on Expert
Granted, February February 26, 2024
2024 (Peck, J.).
(Peck, J.)
s ' Order of Court, Order of Court, In In re: Sentence,
Sentence, April 22, 2024 April 22, 2024.
CP-21-CR-0001395-2022 -- SEIDERS CP-21-CR-0001396-2022 SEIDERS -- DEREK DEREK -- OPINION PURSUANT TO PA.R.A.P.1925, PA.R.A.P.1925, FILED 7/23 Page Count: 12
had had been interviewed and secured secured for
for trial to wish trial causing Defendant to wish to to withdraw
withdraw
his.plea?6 his plea?°
We offer this Opinion pursuant pursuant to Pennsylvania
Pennsylvania Rule of Appellate Appellate Procedure
1925(a). 192S(a).
' '
11
II. Facts and Discussion The The 'Commonwealth
Commonwealth proffered the following proffered the following facts at the facts at time of
the time of the
the plea
plea in
in
support of support of Appellant's Appellant's nolo
nolo plea to the
plea to the rape charge:
rape charge:
e
[O]n or about July 4, 2019, through December 31, 2019, in the area of 4756 . .[OJn Enola Road, on three occasions the Defendant forcibly had sex with the victim L.[J.]H., L.[JJH., [Appellant's
[Appellant's daughter,] who was was 12 and 13 years old at the time.
time. The first
incident occurred on the 4th of July where he forcibly had vaginal vaginal sex with her.
her
The second incident The second occurred towards incident occurred towards the en dof the end ofsummer
summer,,i hi ch t
inn wwhich he
the
Defendant came into her room, covered her mouth, held her down, and forciblyforcibly had - vaginal intercourse with her her. The third occasion, the Defendant took the victim to his room, bound her hands and feet, feet, and forcibly
forcibly had oral
oral sex with her.
her.'
In support of In support of the simple assault the simple assault plea:
plea:
' ' [A]t the time, the juvenile, L.B.H., ..[AJt L.B.H., [Appellant's [Appellant's son,] was living living in the home.
The The Defendant would strike him causing him to to bleed on several occasions occasions....
L.B.H. L.B.H. was 99years old at the time....
time... [The
[The strikes were]
were] [i]n
[iJn the face
face.... 8
Appellant Appellant -alleged several bases in his motion to withdraw his plea plea prior
prior to
to
sentencing, sentencing, namely:
namely: ((1)
1) he
he ""has
has maintained
maintained his
his innocence
innocence throughout
throughout this entire
this entire
process''; process"; (2)
(2) "he did not
"he did not have
have aameaningful
meaningful conversation
conversation with his prior with his counsel
prior counsel
explaining his explaining his plea deal and plea deal and the
the pros and cons
pros and cons of
of going
going to
to trial
trial until
until immediately
immediately
before before trial";
trial"; (3) he was
(3) he was under
under the
the impression
impression he
he would
would be
be immediately
immediately paroled after paroled after
sentence; (4)
the expiration of his minimum sentence; (4) his decision to plead impacted by plead was impacted by
his realization his that plea realization that counsel failed plea counsel failed to contact or to contact or subpoena witnesses he subpoena witnesses he provided provided
to:plea•counsel to plea counsel who°he alleges would who he alleges would have have rebutted the Commonwealth's rebutted the version of Commonwealth's version of
° Notice of Appeal, filed May 17, 2024; Concise Statement of Matter Complained 6 Appeal Complained of on Appeal
Pursuant to Rule 1925(), 1925(b), filed June 7, 2024 2024.
7 N.T. Plea at4-5. 'NT. at 4-5. 8 N.T. Plea at 5-6. NT
33
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Count: 12
events; events; (5) Appellant had asked plea counsel to to obtain aapolice
police report
report for an incident
when when police police were called for
were called for a
a welfare check on
welfare check on the
the house and the
house and the alleged
alleged victim
victim was
not not present; and and (6) Appellant was under the influence of prescription prescription drugs
drugs at the
tame of,the time of the l. plea.
plea.9
At the hearing on the motion to withdraw his plea, Appellant testified that he was plea, Appellant
"always" leaving his plea counsel messages and sending sending e-mails to her which hardly hardly
evoked any responses. Specifically, Appellant Appellant said that he gave gave plea
plea counsel the
phone phone numbers of the the witnesses
witnesses he
he wished her
her to
to pursue
pursue several times
times ""over
over the
the
year" and brought one of those witnesses, Tonya Tonya Swisher,
Swisher, with him the day day he was
-set set to go to to go to trial but ultimately trial but ultimately entered entered aaplea.
plea. He said that
He said that his
his plea counsel said
plea counsel said she
she
was not prepared to use his witnesses and couldn't use any any of them as it was too late
and ,they and they were.irrelevant.
were irrelevant. As to the circumstances surrounding surrounding the plea,
plea, Appellant
Appellant
said said,plea counsel told plea counsel told him him they were not
they were not prepared and they prepared and they would
would have to make
have to make aa
plea ;that."we plea, that."we.got got to make this quick" because they they had to be in court in two minutes, minutes,
that that:they,, they didn't have any evidence to "back anything anything up,"
up," that the plea
plea was for 5-10
years and that he he would
would be
be able to paroled within 55years, to be paroled years, and that that they
they could go
go
to trial but but he would
would get
get more
more time
time if
if he
he went to trial
trial and
and the plea
plea was
was his option.
his best option.
.Appellant Appellant said he did not want to plead but because of his opinion opinion of his counsel's
lack of preparedness, he felt the trial would not result in his favor. He said she did "nothing" and that "you can't make the horse drink, drink, you just take it to the water,"
you just water,"
implying that he had given her everything everything she needed to mount a a defense and she
she
failed to do so. Appellant acknowledged that he appeared appeared by
by Zoom at his request
request for
some of his pre-trial conferences because he was out of state, and we note that review of the docket indicates Appellant appeared by Zoom at least three times prior prior to trial.
Motion to Withdraw No Contest Plea, filed February Motion 9 February 5, 5, 2024.
44
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Appellant's new counsel, at the hearing hearing to withdraw the plea, proffered that plea, proffered
Ms. Ms. Swisher Swisher was unable to to attend the
the motion
motion hearing
hearing as she was hospitalized hospitalized but
but she
she
would testify that she previously lived with Appellant Appellant while they
they were in aaromantic
relationship relationship and, and, to
to undermine
undermine the
the Commonwealth's evidence, evidence, there
there was
was no
no pattern
pattern
of abuse. of abuse. Defense counsel also Defense counsel also proffered proffered that the remaining that the remaining witnesses witnesses Appellant
Appellant
wanted- plea counsel to subpoena for trial were his roommates at some point wanted point and they they
would testify they similarly never saw any type of abuse. Appellant's only evidence Appellant's only
of what these witnesses might have offered at trial consisted of his testimony testimony that he
did not know what years he was living living with Ms. Swisher, he did not know what years years
he he was was living living with roommates, and that that one of those
those roommates
roommates and proposed
proposed
witnesses, Mr.
Mr. Claire, was
was present for
for one of the alleged incidents the alleged incidents of sexual assault on July 4, 4 (year unspecified). Appellant testified that "Jason" came over and took the children and when police arrived for aawelfare check, children check, the kids were not present;
present; they
they
were at "Jason's. "10 Appellant said nothing of the fact that the Commonwealth's "Jason'g."I
evidence would establish that that the
the sexual assaults occurred on more more occasions than
one incident on July July 4th.
. When aapresentence motion to withdraw aaplea is based on a a claim of innocence,
innocence,
as Appellant's is, in part, part, "the innocence claim must be plausible to be at least plausible to
demonstrate, in and of itself, aafair and just reason for presentence presentence withdrawal of aa
plea." Commonwealth v. plea." y, Norton, Norton, 201 A.3d
A.3d 112,
112, 120
120 (Pa.
(Pa. 2019)
2019) (quoting
(quoting
Commonwealth v. Carrasquillo, Commonwealth_ , 115 115 A.3d 1284,
1284, 1292 (Pa.
1292 2015)). "[A]ny
(Pa. 2015)). "[Any
demonstration by aadefendant of a a fair- and-just reason will suffice to support fair-and-just support aagrant, grant,
unless withdrawal would work substantial prejudice prcjudice to the Commonwealth."
Carrasquillo, 115 A.3d A.3d at
at 1292. It has
has been observed:
Appellant's motion avers that the proposed witnesses were Brandon Claire, Steven Shelly, Appellant's 10 Shelly, and Tonya Swisher Swisher.
CP-21-CR-0001396-2022 -- SEIDERS CP-21-CR-0001396-2022 SEIDERS -- DEREK DEREK -- OPINION PURSUANT TO PA.R.A.P.1925, PA.R.A.P.1925, FILED 7/23 Page Count: 12
... "[T]he proper
. "IT]he proper inquiry on consideration inquiry on consideration of of such
such aa withdrawal motion is withdrawal motion whether is whether
the accused the accused has
has made
made some colorable demonstration, some colorable demonstration, under under the circumstances, such the circumstances, such that-permitting that permitting withdrawal withdrawal of thethe plea would would promote
promote fairness
faimess and justice."
justice." While
the Carrasquillo Court acknowledged that that the "policy of liberality the "policy liberality remains extant,"
extant,"
the Court explained the Court explained that this policy "has its this policy its limits, consistent with limits, consistent with the affordance the affordance
of aadegree of degree of
of discretion
discretion to the common to the common pleas courts."
pleas courts."
Thus, the Carrasquillo Court clearlyclearly established that trial courts have the discretion to
to assess the
the plausibility
plausibility of claims of innocence. Consistent with with the the wellwelt
-
established standards governing trial court discretion, discretion, it is important important that appellate appellate
courts courts honor trial courts'
honor trial courts' discretion discretion iinn th ese ma these tters ,as
matters, trial
as trial courts are
courts i
are in
nt he un
the ique
unique
position position to assess the
to assess the credibility of claims credibility of claims ofof innocence innocence and measure, under and measure, under the the
circumstances, whether defendants have made sincere and colorable claims that permitting permitting withdrawal of their their pleas
pleas would
would promote
promote fairness
fairness and
and justice.
justice
Norton, . 201 A.3d A 3d at 120-21 (quoting Carrasquillo, 115 A.3d at 1292)
(quoting Carrasquillo, 1292) (internal (internal
citations omitted). In making this determination, the timing timing of aadefendant's motion, the defendant's knowledge of his available defenses at the time of plea, plea, the nature
of the the innocence claim, and the strength of the Commonwealth's evidence are relevant factors. See jd, id. at 122; Commonwealth v. Garcia, 280 A.3d 1019, v, Garcia, 1019, 1025 1025 (Pa.
(Pa.
Super.;2022), Super, (June 21, 2022), appeal 2022), reargument denied (June appeal denied, 293 A.3d 566 566 (Pa.
(Pa.
2023); Commonwealth v.
, Islas, 156 A.3d 1185,
1185, 1191
1191 (Pa. Super. 2017)
(Pa. Super. 2017).
. We We denied Appellant's Appellant's motion
motion notwithstanding
notwithstanding his
his claim of alleged
alleged innocence
innocence
credibility and sincerity, on the basis of our conclusion that Appellant's claims lack credibility sincerity,
that the Commonwealth presented facts evidencing evidencing the likelihood of conviction and
the strength of its case relative to Appellant's claims of innocence, innocence, and that the
timing of Appellant's Appellant's motion
motion weighed
weighed in
in favor denial. The Commonwealth was favor of denial. was prejudiced by the the late
late request,
request, as itit had
had present
present two young victims who two young who were were
prepared to immediately go to trial the same day as Appellant's Appellant's plea.
plea. We note that
prejudice suffered by the Commonwealth need not be examined where a afair and just
just
reason for withdrawal is not demonstrated. Commonwealth v. Johnson-Daniels, 167 y, Johnson-Daniels,
A.3d 17, 25 n.8 (Pa.
(Pa. Super. 2017). We did find, however, that the Commonwealth would be be substantially prejudiced on the basis that Appellant Appellant entered his plea plea on the
morning of trial while the victims waited to testify.
testify. Appellant
Appellant gained from the timing timing
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of his late request request in
in that he
he avoided the peril of aatrial the peril trial on all charges, despite this charges, despite
Court's Court's admonishment that that he immediately go he could immediately go to trial the day he entered aa the day
plea plea if if he he.were
were innocent
innocent (as
(as more fully set forth
more fully forth below).
below)
Appellant claimed that he pled upon realizing realizing that plea
plea counsel failed to subpoena subpoena
his proposed witnesses. These witnesses, however, in light light of Appellant's
Appellant's testimony,
testimony,
say he made aaplausible
did nothing to aid in his defense such that we could say plausible claim of innocence. The allegations presented by the Commonwealth, in part part at the plea
plea
colloquy and and in part
part .at the
the motion
motion hearing,
hearing, were that Appellant assaulted that Appellant assaulted his his children
sexually and physically physically over aaperiod
period in
in 2019 when
when the
the mother Appellant's mother of Appellant's
children left their home, and that Appellant was not living with Ms. Swisher or with roommates at that time.
time. We
We therefore found
found that
that Appellant's
Appellant's proposed
proposed witnesses
witnesses did
not not support aaplausible plausible claim
claim of innocence,
innocence, where such
such witnesses allegedly would witnesses allegedly would 4ave testified have . testified .that that they
they lived
lived with
with Appellant
Appellant and never saw any abuse, saw any abuse, but
but Appellant
Appellant
had -no had no idea what years he lived with said witnesses. Complicating Complicating matters with respect respect to. Ms. Swisher, to Ms. Swisher, the Commonwealth's investigation the Commonwealth's revealed that investigation revealed in 2021, that in 2021,
when. Appellant when Appellant was was living with Ms.
living with Ms. Swisher,
Swisher, a ChildLine report a ChildLine report was
was made
made
allegations were made at
regarding Appellant's children and while no disclosures or allegations .that that time time with with respect
respect to the
the children, the outcome of that report report was
was that
that Ms.
Ms. Swisher
reported to police that Appellant had sexually sexually assaulted her. On this point, point, we note
that defense counsel that defense counsel at at the
the motion
motion hearing said Ms.
hearing said Swisher had Ms. Swisher text messages had text messages to
to
show one show one of of the
the victims
victims saying
saying she
she would do anything
would do anything she
she needed to do
needed to do to avoid
to avoid
living with her father. Defense counsel, however, had never seen these alleged alleged text
messages, nor did Appellant testify about them or indicate he had seen them or believed them to exist.
The Commonwealth's evidence, meanwhile, is compelling compelling and substantial. The children were both prepared and present present to testify
testify to the facts in support support of
Appellant's charges, namely to the sexual and physical abuse, accompanied accompanied by
by the
77
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recordings of their forensic interviews making making the same disclosures. The children also had made disclosures to their paternal step-grandmother, step-grandmother,who would testify testify that
she, had observed Appellant kick his son, she son,that she observed aachocolate bar smashed
onto, onto Appellant's daughter's daughter '
shead by Appellant,
Appellant, and that she otherwise observed Appellant.: demonstrate extreme aggression to the the extent that the
the children would
would
flinch when Appellant spoke using his hands.
hands .Paternal step -
grandmother also would
step-grandmother
Appellant.The jury
testify to admissions of abuse made by Appellant. jury was ready ready to be selected
where that evidence would immediately immediately be presented
presented in aafair trial of Appellant.
Appellant
Cognizant of that, Appellant chose to enter aaplea.
plea
We We found
found that
that Appellant's
Appellant's claims that he he entered into the plea on the the plea the basis
basis that
that
he -believed he would be paroled in five years, years ,that he claimed counsel was not
prepared for trial trial,,that he did not have enough time to discuss the plea plea with his plea
plea
counsel ,and that he counsel, he was was under
under the influence drugs and alcohol influence of drugs alcohol were belied by by his
his
statements '
during the -
plea colloquy.
colloquy .His plea counsel, whom we know from
experience to be aaprepared and seasoned attorney, attorney, placed
placed on the record his reasons for entering the the nolo plea,
plea, namely
namely that
that he recognized aajury he recognized jury could find find him
him guilty
guilty
daughter '
stestimony. Appellant had nothing based on his daughter's plea counsel's nothing to add to plea
statement, but but he
he did make
make his disagreement known known when this
this Court noted
noted we
we
understood from meeting with counsel prior to the plea plea that he was under the influence at the time of the alleged conduct:
COURT: So before we proceed, Ms. Haynes, THE COURT· • • tell me what the reason is, Haynes,'tell is, why why
you're asking me to accept accept a contendere.
a nolo contendere
MS. MS. HAYNES
HAYNES::Your Honor,
Honor, we're asking Your Honor to accept accept a a nolo because Mr.' Mr. Seiders recognizes that a a jury could find him guilty -- Mr.
guilty - Mr. Seiders recognizes recognizes
that aajury
jury .
could find
find him guilty based testimony of based off of the testimony of [his daughter] and [his daughter]
that he does not wish to go through trial and putput everybody everybody through
through that,
that, and that
..,he
he knows
knows that the
the Commonwealth could prove prove their case through [ through [hishis daughter's]
daughter's]
testimony. testimony
11 Plea counsel was was Andrea Haynes, Esquire.
Andrea Haynes, Esquire
88
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THE COURT: Additionally, THE COURT· Additionally, we were speaking we were speaking with all attorneys with all attorneys present present back
back in
in
chambers. I
I understood he was intoxicated on the evening evening in question?
question?
MS. MS. HAYNES:
HAYNES: Yes,Yes, Judge.
Judge
COURT: Tell
THE COURT. Tell me about about that.
that
MS. MS. HAYNES:
HAYNES: Judge,
Judge, he does not agree with not agree with what
what --—
THE COURT: THE COURT: Is that
that not true?
true?
THE DEFENDANT: THE DEFENDANT, (Shook (Shook head.)
head.)
THE COURT: Why THE COURT· Why don't you talk talk to
to your
your client.
client
MS. HAYNES: Judge, be he agrees that he'd been drinking.
drinking. He does not agree agree with
what what [his daughter] says happened, but he understands that her testimony [his daughter, testimony could come across come across credible
credible to
to the jury and
the jury and that he could that he could be convicted based be convicted based off
off of
of her
her
testimony and what she says happened.
says happened.
THE COURT: Okay. THE COURT· Okay. And, And, additionally,
additionally, are you asking are you asking me to take me to take this
this so
so that
that he
he
can get the benefit
benefit of the
the plea
plea deal?
MS. HAYNES: Yes, MS. HAYNES: Yes, Judge.
Judge.' 12
Put Put another way, way, we'asked
we asked specifically
specifically why
why Appellant
Appellant was taking the plea, was taking plea, as we
always do where nolo pleas pleas are involved to
to ensure there
there is
is aavalid reason accept reason to accept
such nolo plea and to ensure a a defendant is making aaknowing knowing decision. When plea plea
counsel put put Appellant's
Appellant's reasons on the the record,
record, Appellant
Appellant took issue
issue with
with the
the idea
that that he he was intoxicated intoxicated during the
the criminal conduct.
conduct. We
We therefore gave him
therefore gave him time
time to
to
speak speak with with his counsel before proceeding proceeding on the
the plea.
plea. When
When we reconvened,
reconvened, same
would would have been been the
the precise time
time to
to indicate
indicate that he
he was pleading
pleading because
because he
he felt
felt
counsel was not prepared, if true.
true. Similarly,
Similarly, we asked Appellant Appellant if any
any threats or
promises promises had had been
been made
made to
to induce
induce the
the plea,
plea, to
to which he
he responded
responded in
in the
the negative,
negative, 13
which which belies his claims belies his claims that that he
he felt
felt pressured to enter
pressured to enter the
the plea or that
plea or that he believed he he believed he
expired, particularly
would be paroled before his minimum sentence expired, particularly because the plea hearing
agreed-upon sentence was discussed at length at the plea hearing prior entry prior to his entry
Appellant being
of the plea, and included no mention of Appellant prior to the being released prior
sentence. 14 See Commonwealth expiration of his minimum sentence.' v. Contreras, 283 A.3d Commonwealth_y.Contreras,
"N.T. Plea at2-3. NT at 2-3. 13 N.T. Plea at 9. NT Plea at9 14 N.T. Plea at 'NT Plea at 2-4, 6-9.
2-4, 6-9
99
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355 (Pa. 355 (Pa. Super. 2022)
2022) (unpublished
(unpublished decision cited for persuasive persuasive value)
value) (noting
(noting that
"[e]rroneous advice from "[e]rroncous from counsel which which renders
renders aa guilty
guilty plea unknowing,
plea unknowing,
involuntary, or unintelligent may also constitute aa fair and just just reason for
withdrawing aaplea," but ""aadefendant's claim that he did not understand the terms of the the plea plea agreement
agreement ... can be belied by by the
the defendant's
defendant's statements" at the colloquy). We do not find of record any erroneous advice given given by
by plea counsel,
plea counsel,
and, to the contrary, find ample opportunities opportunities for Appellant Appellant to have advised this this
Court of any any issues
issues he
he had with
with the
the plea.
plea.
Another example of this is that Appellant Appellant could have brought brought up
up his concerns
when when we we indicated indicated the
the difficulty we
we would have granting a have in granting a motion motion to
to withdraw
withdraw
his plea at aalater time given that the jury was ready ready for selection,
selection, at which time we gave him additional time to speak with counsel. We then asked if he had anything anything
he wished to say, to which he responded in the negative:
negative:
THE COURT: Okay Okay. Mr Mr. Seiders, I'm indicating indicating to you you that because we have a a jury right jury right now, andand wewe would would -I — Iwould give you would give you aajuryjury trial trial if that's what
what you you
wanted wanted toto have
have happen.
happen. If If you sought
sought to to withdraw
withdraw youryour plea
plea at a
a later time,
time, I
I would
would
likely deny likely that.
deny that.
I
I would,
would, of course, have of course, have to looklook atat what what that
that is,
is, but
but II want
want youyou to
to be aware
be aware
that that would likely get denied because, otherwise, the time is now for you you to to go go
to a to jury trial. Do
ajury you understand?
Do you understand?
THE DEFENDANT: THE DEFENDANT Yes. Yes THE COURT:
COURT· Do Do you
you want
want toto talk
talk to your
your attorney
attorney about
about what
what I I mean?
mean?
THE DEFENDANT:
DEFENDANT· Maybe aalittle. little (Discussion was held between Attorney (Discussion Attorney Haynes Haynes andand the
the Defendant
Defendant off off the record.)
the record.)
THE THE COURT: So, to to be be clear, inin other
other words,
words, sir,
sir, if
if you
you told
told me
me atat a
a later
later time
time that
that
you were innocent you were innocent I I would would likely deny it likely deny on that it on that basis
basis because
because if if you're
you're innocent
innocent
we would we would go go to
to trial
trial right now. Do
right now. Do you
you understand?
understand?
DEFENDANT: DEFENDANT: Yes. Yes. THE COURT:
COURT: Is there anything else you there anything you wanted wanted to say?
to say
THE DEFENDANT: No. No. 15
Understanding Understanding that that Appellant
Appellant later
later claimed he felt
felt he
he had no choice but
but to plead
plead
because of counsel's lack of preparedness, we were dubious of such aaclaim given given
15 N.T. Plea 'NT at 11-12 Plea at 11-12.
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that at several points we gave Appellant the opportunity opportunity to state such concerns and he said nothing. His testimony at the motion hearing strains credulity.
credulity. We also note
the significance, in our view, of the timing of Appellant's Appellant's plea
plea which we found to
undermine the credibility of his testimony. As indicated in the above excerpt, excerpt, a jury
a jury
was waiting to be selected for his trial when he entered the plea.
plea. The plea
plea followed
aastring of defense motions requesting that Appellant Appellant be excused from having having to
appear in person.for person for the proceedings leading leading up
up to trial,
trial, and he had made the effort to come to to Pennsylvania to meet with his attorney attorney only
only once or twice,
twice, he said. The
argument and Appellant's testimony that he had had ""led
led the horse to water" and had
been been backed into a corner by lack a comer lack of
of communication and preparation preparation by
by his
his counsel
appeared he had done
therefore lacked both credibility and sincerity, given that it appeared little, to ,be little to be so much as present in the Commonwealth in the months leading leading up
up to his
trial.
As to Appellant's averment in the motion that he was under the influence of prescription drugs at at the time of the plea, we heard no evidence as to this in his
testimony or otherwise at the hearing on his motion to withdraw the plea. Indeed, plea. indeed,
we asked Appellant Appeliant prior to
to acceptance of his plea plea whether he was under the influence of drugs or alcohol, to which he responded, responded, "no."
"n I616
Finally, we note that we had hoped to hear testimony testimony from Appellant's Appellant's plea
plea
counsel at the hearing on Appellant's motion. While it was Appellant's Appellant's burden of
production and persuasion, we are cognizant that the standard for presentence presentence
withdrawal of a aplea falls
falls far short from the showing showing required
required for post-conviction post-conviction
relief, for example.
example. However, we were still tasked with determining determining whether
Appellant's statements were credible, including including those on his alleged alleged
misapprehension of the misapprehension of the sentence, sentence, and
and whether
whether his claim of
his claim of innocence
innocence was
was plausible.
plausible.
N.T. Plea at 9. See alsg NT 16 also Nolo Contendere Colloquy, Colloquy, filed October 16, 2023.
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When. When we asked motion counsel whether he had subpoenaed subpoenaed plea
plea counsel for the
hearing, he responded that he had not and that without her, her, we are left with
Appellant's Appellant's uncontradicted testimony.
testimony. We
We found, however, that
found, however, that Appellant's Appellant's
testimony at the hearing was in fact contradicted by by his statements at the plea plea and
the circumstances surrounding entry of his plea plea and we determined
detetwined that fairness and justice would would be allowing the be served only by allowing plea to the plea to stand.
We acknowledge that "[the "[t]he law does not require require aacompelling
compelling case for the
defendant's innocence, only a a plausible one based
based on the
the available
available facts."
facts."
Commonwealth v. Garcia, 280 A.3d 1019, 1027 (Pa. Super. 2022).
(Pa. Super. 2022). But see
Commonwealth v. Commonwealth Gary, 307 y, Gary, 307 A.3d 636, at A.3d 636, at *55 (Pa. Super. 2023)
(Pa. Super. 2023) (unpublished (unpublished
decision- cited for decision for persuasive persuasive value) (weighing (weighing the
the defendant's assertions of against "the ample evidence set forth in the affidavit of probable innocence against cause").
probable cause").
We also recognize that Appellant's claim that he pled pled when he learned trial counsel failed. failed to subpoena the witnesses he proposed sounds in both an innocence claim and a plead or otherwise entered an involuntary a .claim that he was unlawfully induced to plead involuntary plea. We We did did not
not find Appellant's
Appellant's claim
claim of innocence
innocence aaplausible one, based on the plausible one, the facts presented at the plea and at the motion hearing.
hearing. We did not find that fairness
and justice required withdrawal of the plea where Appellant Appellant claimed he was shocked to learn the the defense was
was not as
as he
he envisioned
envisioned when
when he had
had forgone opportunities to forgone opportunities to
meet with his counsel prior to trial, where the proposed proposed witness testimony testimony was
unsupported by by any evidence other than vague vague assertions
assertions by
by Appellant
Appellant who
who had little
little
idea about how idea about how precisely precisely those
those witnesses
witnesses would have aided would have aided in
in his
his defense and/or had
defense and/or had
no' direct knowledge of what the witnesses would testify no testify to, where he was given given
every opportunity at the plea hearing to voice his concerns to this Court prior prior to entry
entry
of of the the plea plea and
and in
in fact did take
fact did take issue
issue with
with a collateral matter
a collateral matter but
but said
said nothing of any
nothing of any
inducement he felt to plead or even alluded to any any of the issues he claimed in his his
motion, motion, and where the and where Commonwealth's witnesses the Commonwealth's witnesses were were lined
lined up
up and
and the
the jury
jury was
was
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ready for , selection when he entered his plea. Garcia,280 A.3d at 1026-27 plea. See Garcia,
(finding that the motion to withdraw should have been granted granted where the defendant relied: relied on the preliminary hearing transcript of the victim '
stestimony
victim's testimony to support support aa
defense defense,;where there was "no "no strong evidence to undermine the plausibility plausibility of the
defense ,, and where the court was defense, was`,`not "not faced with aaguilty plea plea entered on the eve of trial".); Commonwealth v. Samuels, trial"); Commonwealth_y, Samuels ,307 A.3d 636, 636 , at
at *88 (Pa.
(Pa. Super. 2023)
Super. 2023)
(unpublished decision -
cited for persuasive value) (noting (noting the significance
significance of the
timing of the defendant's defendant '
sinnocence claim where he had had ""several
several opportunities"
opportunities" to
raise raise the issue previously); Commonwealth v. Ortiz- Cuevas, 285 A.3d 939, v, Ortiz-Cuevas, 939, at *3.4 3-4
(Pa. Super. 2022) (unpublished decision cited for persuasive persuasive value)
value) (noting
(noting that
maintain [
ing] his innocence ...
"consistently maintain[ing] . . . does not necessarily necessarily inure to [a
[a
defendant '
s] benefit" where the defendant never admitted guilt defendant's] guilt (non-guilty (non-guilty plea)
plea) and
and
therefore a "profession of innocence ... did not necessarily innocence... necessarily represent represent aachange
change in
circumstances," and and "possibly represented 'buyer's b̀uyer '
sremorse "'); Commonwealth v.
remorse"");
Abreu, 248 A.3d 493, at *7-8 7-8 (Pa.
(Pa. Super. 2021)
2021) (unpublished
(unpublished decision cited for persuasive value) (commenting on the weakness of alleged alleged evidence of innocence
targeted at challenging the credibility of a complaining witness where the defendant a complaining
was aware of that information at the time he entered his nolo plea).
plea). We discern no
error.
BY THE COURT,
Distribution: Distribution:
e.e- Christylee L. Peck, J.
Skinner,Esquire Julia Skinner, Esquire
Timothy M M. .Barrouk,
Barrouk, Esquire
Esquire
12
•' .E..:c Distriouto copies JUL 224.2824 •iqt lbuted JUl 4 2024