Commonwealth v. Cole

KELLY, Judge,

concurring:

I join Judge McEwen’s concurring opinion. I add the following additional observations.

I agree with the majority that an assertion of innocence will provide “just cause” to withdraw a guilty plea, in some cases. However, before I would find such an assertion to be “just cause” to withdraw a valid plea, I would require some credible explanation for the inconsistency between appellant’s sworn admissions in support of the initial guilty plea and the subsequent assertion of innocence. Otherwise, a disingenuous incantation of the words “I now claim I am innocent” by judicial alchemy would become magic words with which to evade the legitimate requirement of “just cause” for withdrawal of the plea. Such a construction of our Supreme Court’s precedents would constrain trial courts to reward rather than sanction the most disingenuous of such claims, and the most brazen of perjuries.

Like Judge McEwen, I do not read Commonwealth v. Woods, 452 Pa. 546, 307 A.2d 880 (1973) or Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973) to mandate allowance of withdrawal of a plea under such circumstances. Rather, I believe that it is for the trial court to determine whether a post-guilty plea claim of innocence and the explanation for the inconsistent plea (or any other purported “just cause” to withdraw a plea) are credible and genuine. See Commonwealth v. Carr, 375 Pa.Super. 168, 171-73, 543 A.2d 1232, 1233-34 (1988). If they are, with*340drawal must be granted; if not, withdrawal need not be granted.

Regardless, I agree with the majority that prejudice to the Commonwealth precluded allowance of withdrawal of the plea in this case. Hence, I concur in the result.