J-A21034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JAMES VINSON,
Appellee No. 1599 EDA 2013
Appeal from the Order March 5, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004324-2009
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 27, 2014
The Commonwealth of Pennsylvania (the Commonwealth) appeals the
order entered March 5, 2013, which permitted James Vinson (Vinson) to
withdraw his guilty plea to the crimes of sexual assault and unlawful
restraint.1 We affirm.
Vinson was charged with the aforementioned offenses, and a variety of
others, after he was accused of forcing himself on a woman (the
Complainant) in the basement of his home on March 26, 2009. Vinson
waived his preliminary hearing, and a jury trial was scheduled to begin on
January 24, 2011. However, Vinson entered into a plea agreement with the
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 3124.1 and 2902(a), respectively.
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Commonwealth immediately before a jury was selected. The trial court
Prior to sentencing, on May 11, 2011, Vinson filed pro se a motion to
withdraw his plea. In his motion, Vinson asserted his innocence and claimed
-3 (unnumbered
pages). A hearing was held December 27, 2012. At the hearing, Vinson
again claimed that he was innocent of the relevant crimes. N.T.,
12/27/2012, at 19. Vinson complained about his plea counsel and alleged
Id. at 3-18, 20.
In response, Assistant District Attorney Matthew Quigg argued that the
Commonwealth would be substantially prejudiced if Vinson were allowed to
withdraw his plea. ADA Quigg provided the following explanation.
where the [Complainant] is in
this case. I have not had contact with her. The number that I
had for her I called and it is no longer good. I spoke with a few
a month prior, was no longer good as of last week when I called
that telephone number.
As such I would respectfully request the court -- and I
want to give Mr. Vinson every benefit that he is entitled to, and
every right and privilege that he is entitled to under the law. And
as such I would request that we just postpone this matter 30
days to see if someone from the County Detectives can track the
[Complainant] down.
I feel confident in that 30-day period we would be able to
do so. If we are able to do so then the Commonwealth would
have no legal basis to oppose his motion to withdraw his guilty
plea.
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Id. at 34-35.
providing the Commonwealth with an additional 30 days to find the
Complainant. The court scheduled a new hearing for January 28, 2013. On
January 30, 2013, the trial court entered an order indicating that the
February 11, 2013.2
During this hearing, the Commonwealth presented the testimony of
Detective Michael Shade. Detective Shade testified that he had been
attempting to locate the Complainant since January 2, 2013. N.T.,
2/11/2013, at 4. Detective Shade indicated th
phone was out of service, but that he had been in touch with the
Id. at 4- -in-law informed
Detective Shade that the Complainant moved to Florida in 2012. Id. at 5.
Since that time, contact between the Complainant and her family had been
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2
The trial court indicates in its opinion that, on the day scheduled for the
requested that a conference occur. At
the January 28, 2013 conference, ADA Quigg disclosed to the [trial court]
and Defense Counsel that the Commonwealth was having trouble locating
Complainant, but that a bench warrant had been issued for her on an
at 5.
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Id.
her family on the social networking website Facebook. Id.
Detective Shade further explained that he conducted a search for the
Complainant with the assistance of the Pennsylvania Criminal Intelligence
Center. Id. As a result, Detective Shade received a report indicating that the
Complainant had an address in Delray Beach, Florida. Id. at 6. Detective
Shade contacted a police department in Florida. Id. On January 9, 2013,
Detective Shade received an e-mail from a member of the department
stating that the Complainant
Federal Highway in Boynton Beach, Florida, living with a subject named
Ben Id.
that the Complainant call Detective Shade. Id. Detective Shade received no
response from the Complainant. Id.
On January 16, 2013, Detective Shade received a phone call from
another Florida police officer, who informed him that the Complainant
Id. The officer
gave the Complainant
that she give him a call. Id. She did not do so. Id. at 7-8. Detective Shade
also received a new cell phone number for the Complainant, but was unable
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to reach the Complainant using that number.3 Id. Detective Shade again
requested that the Florida police department attempt to track down the
Complainant. Id. at 9. However, as of the time of the hearing, the
Complainant had not been found. Id.
Despite these difficulties, Detective Shade testified that he was
confident that the Complainant would one day be located. Id. at 14. The
trial court asked Detective Shade if there was a way that the Complainant
could be forced to return to Pennsylvania, and Detective Shade indicated
Id.
at 15.4
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3
Detective Shade did relate an incident in which an unidentified woman
answered the phone, but she denied being the Complainant and claimed that
the detective had the wrong number. N.T., 2/11/2013, at 8-9.
4
We note with disapproval that Vinson was at times left to fend for himself
during the underlying proceedings, despite being represented by counsel.
For example, at the February 11, 2013 hearing, the trial court instructed
You need to have a discussion with your counsel as to what cross-
examina
made to cross-examine Detective Shade himself, while his plea counsel
watched. Vinson expressed his belief that his plea counsel was supposed to
be acting as his advocate, and explained that he had not come prepared to
represent himself. Id. at 11-
It is well- the disapproval of hybrid representation is
effective at all levels. Commonwealth v. Cooper, 27 A.3d 994, 1000 n.9
(Pa. 2011).
of Vinson, nor was a hearing held to establish that Vinson wanted to proceed
pro se with standby counsel. See Pa.R.Crim.P. 120(A)(4) ( An attorney who
has been retained or appointed by the court shall continue such
(Footnote Continued Next Page)
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On March 5, 2013, the trial court entered a Memorandum Opinion and
scheduled trial for April 3, 2013. On March 26, 2013, the Commonwealth
sent the trial court an ex parte letter requesting another continuance. The
indefinitely and scheduling a conference for March 28, 2013.
Order to Include Statement Specified in 42 Pa.C.S. §
Application, the Commonwealth requested that the trial court amend its
order of March 5, 2013 so as to permit the Commonwealth to file a petition
for permission to appeal with this Court.5 The trial court denied the
Application on April 4, 2013.
_______________________
(Footnote Continued)
representation through direct appeal or until granted leave to withdraw by
the court
appointment of standby counsel). Thus, the trial court was not permitted to
force pro se status on Vinson.
5
42 Pa.C.S. § 702(b) provides that when a trial court is of the opinion that
involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termination of
the matter, it shall so state in such order.
permission to appeal the interlocutory order. Pa.R.A.P. 1311(b). In the event
a party petitions a trial court to include the relevant language in an
interlocutory order, and the trial court refuses, the party may petition this
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Language Prescribed by 42 Pa.C.S. § 702(B), Pursuant to Pa.R.A.P. 1311
(Official Note) and Pa.R.A.P. 15
argued that the trial court erred by refusing to amend its order of March 5,
2013. On June 11, 2013, this Court issued a per curiam order granting the
6
The trial court then ordered the Commonwealth
to file a concise statement of errors complained of appeal pursuant to
Pa.R.A.P. 1925, and the Commonwealth timely complied.
The Commonwealth now raises the following issue on appeal:
nt to
withdraw his guilty plea to sex crimes, where the [Complainant] moved out-
of-
principles.
A pre-sentence motion to withdraw a guilty plea should be
liberally allowed and should be granted for any fair and just
reason unless granting the motion would cause substantial
prejudice to the Commonwealth. An assertion of innocence can
constitute a fair and just reason for plea withdrawal. In the
context of a pre-sentence request for plea withdrawal, the term
of the plea, the Commonwealth's prosecution of its case is in a
worse position tha[n] it would have been had the trial taken
place as originally scheduled. Thus, prejudice is about the
Commonwealth's ability to try its case, not about the personal
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6
The Commonwealth reverse the order of
the trial court. per curiam
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inconvenience to complainants unless that inconvenience
somehow impairs the Commonwealth's prosecution.
The decision to grant or deny a motion to withdraw a guilty
plea rests within the trial court's discretion, and we will not
disturb the court's decision on such motion unless the court
abused that discretion. An abuse of discretion is not a mere error
in judgment but, rather, involves bias, ill will, partiality,
prejudice, manifest unreasonableness, and/or misapplication of
law. By contrast, a proper exercise of discretion conforms to the
law and is based on the facts of record.
Commonwealth v. Gordy, 73 A.3d 620, 623-24 (Pa. Super. 2013), appeal
denied, 87 A.3d 318 (Pa. 2014) (citations omitted).
Instantly, the Commonwealth appears to concede that Vinson has
withdrawal of his plea. However, the Commonwealth
in a
worse position now at the time of the withdrawal in 2013 than at the time of
the guilty plea in 2011,
producing the Complainant to testify. Id. at 13-15. The Commonwealth
contends that a trial would subject the Complainant to additional trauma and
distress, and that the trial the very real danger that a
sexually violent predator will escape justice because he was allowed to
withdraw his plea. Id. at 15.
In its opinion, the trial court concludes that the Commonwealth was
not substantially prejudiced because
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not to have her returned to Pennsylvania by issuing a subpoena or by
Trial Court Opinion,
11/21/2013, at 14, 21.7,8
not demonstrated a great expense to bring Complainant back to
inant
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7
in our Rules of Criminal Procedure as follows.
After an accused has been arrested for any offense, upon
application of the attorney for the Commonwealth or defense
counsel, and subject to the provisions of this chapter, a court
may set bail for any material witness named in the application.
The application shall be supported by an affidavit setting forth
adequate cause for the court to conclude that the witness will fail
to appear when required if not held in custody or released on
bail. Upon receipt of the application, the court may issue process
to bring any named witnesses before it for the purpose of
demanding bail.
Pa.R.Crim.P. 522(A).
8
The trial court also asserts that the Commonwealth could bring the
against her. Trial Court Opinion, 11/21/2013, at 21. We note that there is
nothing in the certified record confirming that a bench warrant was issued
against the Complainant. While the trial court attached several exhibits to its
opinion indicating that such a warrant was issued, a fact cannot become of
record by virtue of its inclusion in the trial court opinion. Hatalowich v.
Bednarski, 461 A.2d 1292, 1294 (Pa. Super. 1983) a court
may not ordinarily take judicial notice in one case of the records of another
case, whether in another court or its own, even though the contents of those
records may be known to the court. Woolard v. Burton, 498 A.2d 445,
448 (Pa. Super. 1985) (quoting Naffah v. City Deposit Bank et al., 13
A.2d 63, 64 (Pa. 1940)).
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still was residing in Pennsylvania at the time Vinson first sought to withdraw
his plea. Id. at 19-20 (quotation marks omitted).
After a thorough review of the record in this matter, we conclude that
the trial court did not abuse its discretion by permitting Vinson to withdraw
his guilty plea. While the unavailability of a critical witness is an important
factor in assessing substantial prejudice,9 the record here demonstrates that
the Commonwealth has consistently been able to locate the Complainant in
Florida. In a period of about one month, Detective Shade located the
at the Homing Inn on Federal
N.T., 2/11/2013, at 7. Despite being able to find
the Complainant, the Commonwealth has not taken the steps necessary to
insure her presence at trial. As the trial court explained, the Commonwealth
may issue a subpoena or seek to have the Complainant detained as a
material witness pursuant to Pa.R.Crim.P. 522.
Thus, despite its protestations to the contrary, the Commonwealth has
worse position tha[n] it would have been
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9
See Gordy, 73 A.3d at 628 (finding no substantial prejudice where, inter
alia, there was no evidence that th cannot locate, secure
the attendance of, or obtain cooperation from the complainants
Commonwealth v. Kirsch, 930 A.2d 1282, 1287 (Pa. Super. 2007), appeal
denied, 945 A.2d 168 (Pa. 2008) (finding no substantial prejudice because,
inter alia [t]his is not a situation where in the interim a witness has died or
left the jurisdiction, or where key evidence has been inadvertently lost or
destroyed
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had the trial taken place as originally scheduled. Gordy, 73 A.3d at 624.
The Commonwealth remains fully capable of prosecuting Vinson, so long as
it exercises reasonable diligence to secure the Complainant for trial.
Additionally, we agree with the trial court that the Commonwealth has
failed to demonstrate that any significant expense would be incurred by
bringing the Complainant back to Pennsylvania, and that the timing of
guilty plea process.10 Vinson filed the motion to withdraw his guilty plea at
least seven months before Complainant left the jurisdiction, and it does not
appear that Vinson was attempting to withdraw his plea in hopes that the
Complainant would become unavailable. Cf. Commonwealth v. Cole, 564
A.2d 203, 205-06 (Pa. Super. 1989) (affirming denial of pre-sentence
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
11
returned to Georgia.
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10
As observed by the trial court, Trial Court Opinion, 11/21/2013, at 20,
ADA Quigg indicat
expense of transporting a single witness to Pennsylvania. N.T., 2/11/2013,
at 21-22.
11
The other cases cited by the Commonwealth where defendants have been
prevented from withdrawing their pleas are readily distinguishable from the
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2014
_______________________
(Footnote Continued)
instant matter. See Commonwealth v. Ross, 447 A.2d 943 (Pa. 1982)
(affirming denial of pre- which had
been made after the dismissal of numerous key Commonwealth
witnesses in reliance on the plea Commonwealth v.
Dicken, 895 A.2d 50, 54 (Pa. Super. 2006), appeal denied, 907 A.2d 1101
(Pa. 2006) (affirming denial of pre-sentence motion to withdraw guilty plea
witnesses from other state
agencies would have to be flown in from all over the country to
testify Commonwealth v. Carelli, 454 A.2d 1020,
1023 n.9 (Pa. Super. 1982) (affirming denial of pre-sentence motion to
withdraw guilty plea where many Commonwealth witnesses who had
been victimized by the appellants were present for trial and had travelled
) (emphasis added); Commonwealth v. Miller, 639 A.2d
815, 819 (Pa. Super. 1994) (affirming denial of pre-sentence motion to
withdraw guilty plea where
find another county in which appellant could be tried by a jury unaffected by
the extensive publicity which had
); Commonwealth v.
Ammon, 418 A.2d 744, 748 (Pa. Super. 1980) (affirming denial of pre-
sentence motion to withdraw nolo contendere plea entered midway through
trial after the minor victim testified at length about sexual abuse perpetrated
by Ammon); Commonwealth v. Mosley, 423 A.2d 427, 429 (Pa. Super.,
1980) (reversing grant of pre-sentence motion to withdraw guilty plea where
the Commonwealth presented uncontroverted psychiatric testimony that
[the victim] may commit suicide under pressure of having to testify at any
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