Com. v. Roman, J., Jr.
CourtSuperior Court of Pennsylvania
Date FiledNovember 3, 2026
Docket1096 MDA 2025
JudgeBender
StatusUnpublished
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Full Opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE DIEGO ROMAN JR. :
:
Appellant : No. 1096 MDA 2025
Appeal from the Judgment of Sentence Entered March 5, 2025
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000392-2023
BEFORE: LAZARUS, P.J., STABILE, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED: NOVEMBER 3, 2026
Appellant, Jose Diego Roman Jr., appeals from the judgment of sentence
entered following his nolo contendere plea to seven sexual offenses committed
against his ex-girlfriend’s daughter. Appellant argues that the trial court
erroneously denied his pre-sentence motion to withdraw his plea. We
conclude that the trial court erred by failing to hold a hearing and that the
Commonwealth failed to establish that it would have been substantially
prejudiced if Appellant were permitted to withdraw his plea. We therefore
vacate and remand for further proceedings.
On November 28, 2022, East Hempfield Township Police Department
Officer Ethan Etter filed a criminal complaint against Appellant. The attached
affidavit of probable cause stated that Appellant, the victim’s mother (“L.L.”)
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and the victim (“Victim”)1 had previously resided together, and that Appellant
committed multiple sexual assaults between 2017 and 2019, beginning when
Victim was 13 years old. The police became involved after Victim’s boyfriend
“encouraged her to stand up for herself, tell her mother, and make a report
to the police.” Affidavit of Probable Cause, 11/28/22, at ¶ 4. The affidavit
detailed several specific instances of sexual contact.
The Commonwealth filed its initial criminal information on February 10,
2023, followed by an amended information on March 5, 2024 charging
Appellant with seven counts.2 On March 11, 2024, the parties appeared for
jury selection. Appellant opted to enter a nolo contendere plea to the
amended information. The Commonwealth offered the following summary of
the evidence it intended to present if the matter proceeded to trial.
Your Honor, this occurred approximately between 2017 and 2019
at two of [Appellant]’s households . . . . The victim in this case
was . . . the daughter of [Appellant’s] girlfriend. The victim in this
case was born in 2004. [Appellant] was born in 1985. They lived
together at these two households.
[Appellant] did intentionally, knowingly place his penis in the
minor victim’s mouth. He also put his mouth on the minor victim’s
vagina. He did knowingly and intentionally attempt to place his
penis in the minor victim’s vagina. He slapped her buttocks on
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1 We use this designation for ease of readability as the victim’s initials are also
L.L.
2 The Commonwealth charged Appellant with two counts of involuntary deviate
sexual intercourse with a victim under 16, 18 Pa.C.S. § 3123(a)(7); statutory
sexual assault, 18 Pa.C.S. § 3122.1(b), criminal attempt – statutory sexual
assault, 18 Pa.C.S. § 901(a); indecent assault – victim under 16, indecent
exposure, 18 Pa.C.S. § 3127(a); and corruption of minors, 18 Pa.C.S.
6301(a)(1)(ii).
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multiple occasions and touched her breasts. He masturbated in
front of her and made her come into contact with seminal fluid.
And this was the course of conduct which occurred while she was
between the ages of 13 and 16 years old.
N.T., 3/11/24, at 8.
The trial court deferred sentencing pending the preparation of a
presentence investigation report. On April 9, 2024, the trial court entered an
order stating that the report had been completed and set sentencing for April
29, 2024; that proceeding was canceled for unexplained reasons by order
dated April 15, 2024.
On May 21, 2024, Shawn M. Dorward, Esq., entered his appearance for
Appellant. Appellant, through counsel, then filed a petition to withdraw his
plea pursuant to Rule of Criminal Procedure 5913 on June 7, 2024. Appellant
acknowledged that a “bare assertion of innocence” does not require a court to
grant the motion. Motion to Withdraw Plea, 5/21/24, at ¶ 16 (quoting
Commonwealth v. Hvizda, 116 A.3d 1103, 1107 (Pa. 2015)). Appellant
supported his innocence claim with the following representations:
Since the . . . no contest plea several individuals have come
forward and prepared written statement[]s concerning the
juvenile complaining witness’ truthfulness regarding her
allegations against [Appellant]. Attached as Exhibit A, is a true
and correct copy of a notarized letter prepared by [L.L.], the
complaining witness’ mother. Attached as Exhibit B, is a true and
correct copy of a notarized letter prepared by Lydoris Rosado.
[L.L.] and the complaining witness moved in with Ms. Rosado and
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3 “At any time before the imposition of sentence, the court may, in its
discretion, permit, upon motion of the defendant, or direct, sua sponte, the
withdrawal of a plea of guilty or nolo contendere and the substitution of a plea
of not guilty.” Pa.R.Crim.P. 591(A).
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her family in July 2022 after the allegations in this case came out.
Attached as Exhibit C, is a true and correct copy of [Rosado’s
daughter]’s letter confirming conversations she had with the
complaining witness where she explained she was not truthful with
what she said [Appellant] did to her.
Id. ¶ 26.
L.L.’s letter stated that Victim “did not seem as bothered as I was . . .
considering the accusations.” See id. (Exhibit A). L.L. wrote that in
November of an unspecified year, L.L. moved to an apartment while her
daughter “moved to Ohio with her dad.” Id. Next, on May 6, 2023, L.L.
traveled to Ohio to meet her daughter, where the two discussed an “article
that came out in the newspaper,” which was apparently about the accusations;
the victim told L.L. that “the newspaper ‘is lying.’” Id. L.L. also wrote that
the Commonwealth subpoenaed her for trial, but she informed the assistant
district attorney “that I was not going to testify for them, I was going to testify
for the defense. Because of the conversation I had with her in Ohio. Where
she is admitting to me that the charges are not true.” Id.
Rosado’s letter indicated that she told her oldest daughter, M.R., that
she and L.L. planned to attend Appellant’s trial. Id. (Exhibit B). M.R.
expressed surprise that the case was going forward, with M.R. informing
Rosado that Victim told M.R. she did not like Appellant and believed L.L. “could
find someone better.” Id. M.R.’s letter expanded on her conversations with
Victim. M.R. stated that on one occasion Victim “brought up the subject, and
stated that she had to keep pretending or her and her mother were going to
get in trouble. [Victim] also stated that she was tired of going to the therapist
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and keeping up the act.” Id. (Exhibit C). M.R. asked Victim to explain what
she meant, and Victim mentioned that she was “pretending about the
situation,” which M.R. interpreted “to mean she was lying.” Id. Appellant
argued that these representations established more than a barebones
assertion of innocence and therefore the court should apply the “liberal
allowance of presentence withdrawal of pleas” and grant relief. Id. ¶ 9
(citation omitted).
The trial court canceled sentencing and ordered the Commonwealth to
file a response. The Commonwealth’s answer described the three letters as
“character letters calling the victim a liar,” and represented that “[L.L.’s]
stance on the case was well known to [Appellant] prior to his plea of guilty.”
Commonwealth’s Response, 9/8/24, at 1; 2.
Specifically, the Commonwealth explained:
[L.L.] has been an adverse party to the case from its inception,
has provided a statement asserting [Appellant]’s guilt to the
police, and prior to trial represented that she lied to police and
would lie on the stand. Aware that her lack of cooperation with a
subpoena might result in a material witness warrant, [L.L.’s]
private counsel advised her to appear for trial. A notarized
statement after [the plea], crafted towards her previously
admitted falsehoods, is hardly “new evidence” of innocence.
Id. at 2.
The Commonwealth also asserted that it would be prejudiced if the
motion were granted, as Victim had moved.4 Moreover, the Commonwealth
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4 It is not clear whether the Commonwealth was referring to the move to Ohio
discussed in L.L.’s letter or another location.
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asserted that it was also prejudiced because L.L.’s statements “have, for the
third time, changed, creating further inconsistency which now needs to be
investigated.” Id.
On September 12, 2024, the trial court denied the motion without a
hearing. See Order and Memorandum, 9/12/24, at unnumbered 2. The
memorandum stated: “[A]s the Commonwealth points out, [Appellant] was
aware of one witness’ two different statements before he entered the plea.”
Id. Thus, “[n]o new evidence has been put forward to meet the standard of
a fair-and-just reason to grant the withdrawal, especially when the
Commonwealth has been substantially prejudiced.” Id. Accordingly, the trial
court concluded that “[e]ven giving [Appellant] the liberal review he deserves,
based on the facts before the court, the court concludes [Appellant] has not
met his burden of coming forward with any new facts or allegations that he
did not know at the time of his [p]lea.” Id.
Alternatively, the trial court concluded that the Commonwealth would
be prejudiced because Victim had moved and its witnesses were present and
ready to testify had the case proceeded. Id. (emphasis added). Furthermore,
L.L. “has now made a third different statement regarding the matter.” Id.
Appellant filed a motion to reconsider, raising a due process claim.
Therein, Appellant argued that “[t]he private interest that will be affected by
denying the . . . request to withdraw his guilty [sic] plea is the opportunity to
have his case heard and decided by an impartial panel of Lancaster County.”
Motion to Reconsider, 9/18/24, ¶ 17. He asserted that the trial court’s denial
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of his motion to withdraw his plea “denied him the ability to correct a wrong
and face his accuser,” and “denied him the ability to take advantage of all the
constitutional protections and safeguards that our criminal justice system
affords.” Id. ¶ 18. Appellant averred that the Commonwealth and trial court’s
analysis misapplied the law, as Appellant “is unaware of any case law that
suggests [Appellant] must establish ‘new evidence’ in order to withdraw his
plea.” Id. ¶ 26.
Ultimately, the trial court denied the motion and sentenced Appellant on
March 5, 2025, to an aggregate period of 10 to 20 years of incarceration.
Appellant filed a post-sentence motion on March 14, 2025. On July 18, 2025,
Appellant requested that the clerk of courts enter an order denying the motion
by operation of law. The trial court issued an order on August 6, 2025, stating
that the court had not received the motion and informed Appellant of his
appeal rights.
Appellant filed a timely notice of appeal on August 11, 2025, and
complied with the trial court’s order to file a Rule 1925(b) statement.5 The
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5 As Appellant noted in the motion, subject to exceptions not applicable here,
if the trial court fails to decide the motion within 120 days the motion shall be
deemed denied by operation of law. See Rule 720(B)(3)(a). In that case,
the clerk of courts is required to enter an order on behalf of the trial court.
Id. (B)(3)(c).
The 120th day for purposes of the rule was July 14, 2025. Appellant’s notice
of appeal was timely from the date the order should have been denied. See
also Commonwealth v. Khalil, 806 A.2d 415, 420 (Pa. Super. 2002)
(explaining that a breakdown in court operations may excuse an untimely
appeal in cases where the governmental units fail to comply with Rule 720).
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trial court issued an opinion responding to Appellant’s errors. Appellant
presents two issues for our review:
1. Did the trial court err in denying [Appellant]’s request to withdraw
his no contest plea prior to sentencing as this denial violated his
right to [d]ue [p]rocess as protected by the Fourteenth
Amendment of the United States Constitution and Article 1,
Section 1 of the Pennsylvania Constitution?
2. Did the trial court err in denying [Appellant]’s request to withdraw
his no contest plea prior to sentencing as this denial was in direct
contrast to the Pennsylvania Rules of Criminal Procedure and our
[a]ppellate [c]ourt’s [p]recedent?
Appellant’s Brief at 1.
In his first issue, Appellant argues that the trial court violated his due
process rights by denying his motion to withdraw his plea. See id. at 11-12.
The following excerpt summarizes his essential points:
Determining the constitutional sufficiency of procedures
implicating due process protection “requires analysis of the
governmental and private interests that are affected.”
* * *
The private interest that was affected by denying the Appellant’s
request to withdraw his guilty plea was the opportunity to have
his case heard and decided by an impartial panel of Lancaster
County. In denying Appellant’s Petition, the trial court denied him
the ability to correct a wrong and face his accuser. The trial court
denied him the ability to take advantage of all of the constitutional
protections and safeguards that our criminal justice system
affords. Depriving [Appellant] of the ability to withdraw his plea
prevented his case from being heard at a meaningful time and in
a meaningful manner.
Id.
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As indicated, Appellant reasons that the trial court’s failure to grant his
motion acted to deprive Appellant of his constitutional right to a jury trial. His
argument overlooks that Appellant waived the various constitutional rights
concerning a jury trial by entering his nolo contendere plea. See
Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa. Super. 2003) (explaining
that a defendant routinely waives “a plethora of constitutional rights by
pleading guilty, including the right to a jury trial by his peers, the right to have
the Commonwealth prove his guilt beyond a reasonable doubt, and his right
to confront any witnesses against him”).6
Our Supreme Court has explained:
[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)
(footnote and citation omitted). The trial court’s ruling is reviewed for an
abuse of discretion.
Consistent with the well-established standards governing trial
court discretion, it is important that appellate courts honor trial
courts’ discretion in these matters, as trial courts are in the unique
position to assess the credibility of claims of innocence and
measure, under the circumstances, whether defendants have
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6 “[F]or 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 (Pa.
2019) (citation omitted).
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made sincere and colorable claims that permitting withdrawal of
their pleas would promote fairness and justice.
Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019). Additionally, we
must “review[] the trial court’s actual holding to determine whether the trial
court’s evidentiary ruling was the product of a misapplication of the law or
whether the trial court’s judgment was manifestly unreasonable, or the result
of partiality, prejudice, bias or ill-will.” Commonwealth v. DiStefano, 265
A.3d 290, 299 (Pa. 2021).7
Because every denial of a pre-sentence motion to withdraw a plea could
be said to deny a defendant “the ability to correct a wrong and face his
accuser,” crediting Appellant’s argument would eliminate the trial court’s
discretion to grant or deny pre-sentence motions to withdraw pleas.
Appellant’s Brief at 12. Thus, Appellant attempts to displace the abuse of
discretion standard codified by Rule of Criminal Procedure 591. Appellant
develops no argument that a defendant is constitutionally entitled to withdraw
his plea pre-sentencing. Therefore, the germane question is whether the trial
court abused its discretion in rejecting his request. Indeed, the trial court
must apply a liberal standard in these cases largely because of the importance
of those rights. See Commonwealth v. Santos, 301 A.2d 829, 830 (Pa.
1973) (explaining that in ruling on a motion to withdraw a pre-sentence plea
“courts should show solicitude for a defendant who wishes to undo a waiver
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7 The DiStefano case involved an admissibility of evidence question.
However, the standard is logically applicable to any abuse of discretion
decision.
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of all constitutional rights that surround the right to trial—perhaps the most
devastating waiver possible under our Constitution”) (quotation marks and
citation omitted). Therefore, we reject Appellant’s first issue.
In his second issue, Appellant argues that the trial court abused its
discretion in denying his motion to withdraw his plea. Appellant’s Brief at 15-
26. We conclude that the trial court abused its discretion by rejecting the
claim without an evidentiary hearing.
Both parties maintain that Norton supports their respective positions.
In that case, the Commonwealth charged Norton with sexual crimes involving
the abuse of his paramour’s granddaughter, who was born in 2004, with the
incidents taking place “on at least five occasions from September of 2008
through April of 2012.” Norton, 201 A.3d at 114. Norton filed a motion
seeking “an order precluding the Commonwealth from presenting at trial
evidence regarding sexual abuse [Norton] allegedly inflicted upon his now-
adult daughter (‘Daughter’) when Daughter was a child in the late 1980s and
early 1990s.” Id. at 115. The trial court denied the motion and on November
7, 2014, the matter “was scheduled to commence for purposes of jury
selection. However, on that date, the parties informed the trial court that they
had reached an agreement.” Id. Norton entered a nolo contendere plea to
two counts, and the Commonwealth agreed to an aggregate term of two to
six years of incarceration. Id. The trial court accepted the plea and, following
postponements, scheduled sentencing for May 7, 2015. Approximately four
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months after his plea, Norton filed on March 23, 2015, a motion to withdraw
and proceed to trial.
The trial court initially granted the motion; however, the Commonwealth
filed a motion for reconsideration following the Carrasquillo decision. The
trial court held a hearing, at which “the Commonwealth questioned the
plausibility and sincerity of [Norton]’s assertion of innocence and suggested
that [Norton] simply was seeking to delay the prosecution and the
consequences that awaited him.” Id. at 117. Additionally, the
Commonwealth “posited that strong evidence of record indicates that
[Norton]’s assertion of innocence was implausible and that fairness and justice
did not require the court to allow [Norton] to withdraw his plea.” Id.
On appeal, Norton argued that he
had always maintained his innocence, emphasizing that his nolo
contendere plea did not equate to an admission of guilt to the
crimes of which he was convicted. In this regard, Counsel also
asserted that, when the [Sexual Offenders Assessment Board]
interviewed [Norton] to assess his sexual offender status, he
“refused to participate, maintaining his innocence.” N.T.,
6/25/2015, at 7. Counsel further stated that, if permitted to
withdraw his plea, [Norton] intended to contest the
Commonwealth’s evidence at trial by attacking [the v]ictim’s
credibility, as she answered, “I don’t remember,” at least 15 times
during the preliminary hearing. Id. at 8.
Id.
The trial court granted the Commonwealth’s motion. Applying
Carrasquillo, the trial court determined that Norton failed to make the
required “colorable demonstration” that withdrawal of his plea would promote
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“fairness and justice.” Id. (quoting trial court order). In support, the trial
court cited the fact Norton entered his plea “the day that the court and parties
were set to pick a jury.” Id. Furthermore, Norton “simply averred that he
was innocent and could not live with himself for taking a plea to offenses of
which he is innocent.” Id. at 117-18 (quotation marks and citation omitted).
Addressing the substantive claim of innocence by reference to the victim’s
credibility, “the court found that [Norton] had ample time to discover and
inspect the Commonwealth’s evidence well prior to his plea,” and presumed
that Norton “and his counsel considered all of the evidence” in deciding
whether to accept the plea. Id. at 118. Accordingly, the “bare assertion of
innocence did not establish that withdrawal of the plea would promote fairness
and justice.” Id. at 119.
Our Supreme Court affirmed this Court’s order affirming the trial court’s
decision. We quote at length the Court’s application of the abuse of discretion
standard:
Turning to the circumstances of this case, in support of his
presentence motion to withdraw his plea of nolo contendere,
[Norton] asserted in the trial court that: (1) he is innocent; (2) he
cannot live with himself for taking a plea; and (3) he wants to test
the Commonwealth’s evidence at trial. Simply put, the last two
assertions add nothing to the first. [Norton]’s contention that he
could not live with himself for entering his plea is self-serving
makeweight and does not add any substantive support to the
plausibility of his claim of innocence. [Norton]’s desire to test the
Commonwealth’s evidence at trial is equally non-substantive.
Generally speaking, trials are always proceedings in which the
parties test each other’s evidence, and [Norton]’s belated wish for
a trial fails to bolster his claim of innocence, particularly in light of
the fact that any vulnerability in the Commonwealth’s evidence,
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specifically [the v]ictim’s testimony, was well known to [Norton]
prior to him entering his plea. In other words, for all intents and
purposes, the reality is that [Norton] solely asserted his innocence
in an attempt to withdraw his plea presentence.
The trial court was intimately familiar with this case, having
observed [Norton] throughout the various trial court proceedings.
Additionally, the court demonstrated a studied understanding of
the law in this area. For example, the trial court appropriately
assessed the plausibility of [Norton]’s contentions supporting
withdrawal of his plea when it considered the timing and entry of
the nolo contendere plea, which occurred in chambers while a
prospective jury pool waited in the courtroom. The trial court also
properly factored into its exercise of discretion [Norton]’s
knowledge of his available defenses when he pleaded and then
inexplicably waited four months to file his motion to withdraw his
plea.
Id. at 121–22.
In sum, “the trial court assessed the nature of the claim [Norton] offered
in support of his motion to withdraw his plea, [and] the court reasonably
determined that . . . [Norton] simply was presenting a bare assertion of
innocence.” Id. at 122.
In Commonwealth v. Garcia, we applied Norton and reversed an
order denying a pre-sentence motion to withdraw a guilty plea. There, the
Commonwealth charged Garcia with aggravated indecent assault after
authorities responded to a sexual assault in progress at the home of Garcia’s
ex-girlfriend. Commonwealth v. Garcia, 280 A.3d 1019 (Pa. Super. 2022).
The police found Garcia in the bushes outside the victim’s apartment building
and his DNA was found on a vaginal swab taken from the victim’s sexual
assault examination. Garcia entered a plea on March 4, 2020, then filed a
motion to withdraw on April 22, 2020, asserting his innocence.
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The trial court held a hearing, at which the victim testified consistently
with the basic allegations set forth at Garcia’s guilty plea hearing. The victim
testified that she had invited Garcia to her apartment about one week before
the assault. Additionally, she had obtained a Protection From Abuse order
against Garcia in 2017 based on an alleged sexual assault, which was not
prosecuted in criminal court due to the victim’s reluctance to proceed. Id. at
1022.
Garcia, who did not testify or offer any evidence at the hearing, “argued
that, because the victim and [Garcia] had been in a relationship over many
years, and because the victim permitted [Garcia] into her apartment a week
before the assault, [Garcia] had a viable consent defense.” Id. The
Commonwealth argued that “there was no viable claim of innocence” because
Garcia “made incriminating statements to police regarding the 2019
allegations and that he had confessed to police regarding the 2017
allegations.” Id. The trial court denied the motion.
Garcia then filed a second pre-sentence motion to withdraw, “this time
asserting newly discovered evidence.” Id. Garcia asserted that during
proceedings to determine whether he should be deemed a sexually violent
predator “he received police reports he had not seen any earlier. The reports
referenced the two text messages the victim allegedly sent to her sister during
the assault.” Id. However, the police “never followed up or attempted to
obtain evidence of the messages in question.” Id. The Commonwealth
responded that Garcia “was aware of the text messages, based on the victim’s
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preliminary hearing testimony.” Id. at 1022-23. Moreover, “the police
reports in question had been provided earlier.” Id. The Commonwealth
“argued that the alleged after discovered evidence would, at most, challenge
the victim’s credibility and thus was not a valid basis for plea withdrawal. The
trial court denied the second motion without conducting a hearing.” Id. at
1023.
We reversed, explaining that “despite repeated promptings from the
trial court” Garcia declined to testify at the hearing, precluding the trial court
from “assess[ing] his credibility.” Id. at 1026. Nevertheless, “the record is
not completely bereft of evidence,” as the record supported “a plausible
consent defense” based on a “consensual visit to the victim’s apartment just
prior to the alleged assault, as well as a prior relationship with the victim, in
support of a consent defense.” Id. That was “more than the bare,
‘makeweight’ assertion of innocence at issue in Norton.” Id. Furthermore,
“there is no strong evidence to undermine the plausibility of [Garcia]’s consent
defense.” Id. While the Commonwealth cited in its brief “contemporaneous
confessions to police,” we pointed out that those “were not a part of the proffer
at the guilty plea hearing, and the Commonwealth did not produce them, or
any other evidence, at the withdrawal hearing.” Id. at 1026-27. “Because .
. . the strength of the Commonwealth’s case, in relation to the nature of the
defendant’s claim of innocence, is relevant to our analysis, the Commonwealth
would have done well to develop a record in opposition to plea withdrawal,
regardless of [Garcia]’s limited evidence.” Id. at 1027.
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Here, applying the abuse of discretion standard in light of the preceding
cases, we conclude that the trial court’s judgment was manifestly
unreasonable, as it relies on an incomplete record. The inquiry is “whether
the accused has made some colorable demonstration, under the
circumstances, such that permitting withdrawal of the plea would promote
fairness and justice. The policy of liberality remains extant but has its limits,
consistent with the affordance of a degree of discretion to the common pleas
courts.” Carrasquillo, 115 A.3d at 1292. The trial court’s failure to hold an
evidentiary hearing has left this Court with a diminished record, which does
not, as explained infra, support the trial court’s conclusion.
We agree with Appellant that the trial court erred by refusing to consider
the primary evidence cited in support of his innocence claim—the allegations
contained within the notarized letters—on the grounds that Appellant knew of
those facts when he entered the plea.8 Appellant repeats the claim raised in
his motion to reconsider, i.e., settled caselaw does not “suggest[] [Appellant]
must establish ‘new evidence’ in order to withdraw his plea.” Appellant’s Brief
at 19.
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8 The trial court also concluded that the content of the letters were
inadmissible. Trial Court Opinion, 10/7/25, at 3 (stating that “the contents of
these letters were inadmissible hearsay, if not double or triple hearsay”).
Because we remand for further proceedings, we decline to address the
admissibility of the statements and what role that issue should play in the
application of the governing standards of law. The parties are, of course, free
to address that point on remand.
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First, the facts surrounding Appellant’s personal knowledge, as opposed
to the information known by his attorneys, appears to be a matter of dispute
best resolved by credibility findings following a hearing. The Commonwealth’s
reply at the trial court level cited Appellant’s opportunity to consult with plea
counsel, Heather Reiner, Esq., regarding the information set forth in the
notarized letters. See Commonwealth’s Response, 9/8/24, at 3 (“On the plea
colloquy, [Appellant] indicated he had ample opportunity to consult with his
attorney before entering his plea.”). This response ignores the fact that
Appellant retained new counsel, and Attorney Dorward’s petition alleged that
if Appellant “knew these witnesses possessed this information he would have
never entered a plea and he would have went to trial.” Motion to Withdraw
Plea, 5/21/24, ¶ 27. Appellant’s brief similarly asserts that the “trial court
also relied upon the Commonwealth’s contention that [Appellant] was aware
of one witness’ two different statements before he entered his plea.”
Appellant’s Brief at 19. See also id. (“Even if [Appellant] was aware of [L.L.]’s
belief that her daughter was lying about the allegations, there is nothing of
record, other than the letters attached to his motion to withdraw his plea, that
would suggest he had any knowledge or information about Lydoris Rosado and
her juvenile daughter.”). Whether Appellant lacked knowledge of the letters’
contents is relevant to the assessment of whether Appellant’s request to
withdraw his plea should be granted.
Regardless, even if Appellant knew of the information and opted to enter
the plea despite that knowledge, the trial court erred by concluding those
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points were irrelevant to the legal assessment of whether Appellant presented
something more than a “barebones” assertion of innocence. In Norton, the
appellant “highlighted the extent to which [the victim’s] testimony at the
preliminary hearing was riddled with ‘I don’t remember’ responses to
questions about the alleged incidents.” Norton, 201 A.3d at 129 (Donohue,
J., dissenting) (footnote omitted). The Majority concluded that the “trial court
also properly factored into its exercise of discretion [Norton]’s knowledge of
his available defenses when he pleaded and then inexplicably waited four
months to file his motion to withdraw his plea.” Id. at 122. In Garcia, we
did not interpret Norton to announce a per se rule that a defendant cannot
point to previously known facts to support a claim of innocence.
Here, as in Norton, [Garcia] was aware of the victim’s preliminary
hearing testimony well in advance of his plea. Thus, he entered
his plea well after the basis for his subsequent withdrawal motion
was readily apparent. In other respects, however, we find Norton
distinguishable. There, the defendant waited four months to
withdraw his plea, and the Norton Court characterized his claim—
that he could not live with himself for entering the plea and that
he wanted to test the Commonwealth’s evidence—as non-
substantive. Instantly, [Garcia]’s withdrawal motion was much
more prompt, and he relies on a consensual visit to the victim’s
apartment just prior to the alleged assault, as well as a prior
relationship with the victim, in support of a consent defense.
Thus, [Garcia] has made more than the bare, “makeweight”
assertion of innocence at issue in Norton.
Garcia, 280 A.3d at 1026.
Likewise, in Commonwealth v. Islas we held that the trial court erred
in denying a pre-sentence motion to withdraw a guilty plea. We summarized
the circumstances presented by Islas at his evidentiary hearing:
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At the hearing on his motion to withdraw, Islas testified that: he
did not engage in the charged conduct; he had maintained his
innocence when interviewed by law enforcement; had the conduct
occurred as alleged, it would have been witnessed by other
campers and counselors in the cabin at the time; the victim had a
motive to fabricate the charges; the victim had delayed in
reporting the first incident; and Islas was of good character, had
no criminal record, and had never received a similar complaint in
the many years he had been working in the field. Islas further
testified that his new counsel had explained to him, as prior
counsel had not, his available defenses, including his ability to call
character witnesses on his behalf.
Commonwealth v. Islas, 156 A.3d 1185, 1191 (Pa. Super. 2017).
In that case, Islas necessarily knew that he had maintained his
innocence and he presumably had knowledge of many of the other cited facts
when he entered his plea. Furthermore, the quoted portion indicates that
failures by counsel relative to trial preparedness or advice may be
appropriately considered at the pre-sentence stage.9 Therefore, knowledge
of the information is appropriately considered in ruling on the motion, but it
cannot as a matter of law outright bar relief. However, the trial court opinion
appeared to attach dispositive effect to Appellant’s (disputed) knowledge of
those facts.
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9 To the extent this point suggests a lurking ineffective assistance of counsel
claim relative to trial counsel’s preparedness, we note that Appellant did not
specifically claim any inadequacy in that regard. While we are mindful that
ineffectiveness claims are generally deferred to collateral review, Islas
suggests that a court may incorporate ineffectiveness considerations into the
“fair and just” calculus. Furthermore, it is not clear whether counsel advised
Appellant to enter a nolo contendere plea or if Appellant chose to do so on his
own volition.
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Turning to the role of timing, that Appellant waited approximately three
months to file the motion to withdraw after entering the plea is a factor, and
Norton suggests that the timing of the actual plea is also a factor. Indeed,
the Commonwealth points to the fact Appellant, like the appellant in Norton,
entered a plea on the day of trial as a reason to affirm. See Commonwealth’s
Brief at 21 (arguing that “[t]he facts in Norton are very similar to the facts in
the instant case” because, inter alia, both appellants wished to attack the
victim’s credibility and both entered a plea on the day of trial), 23
(distinguishing Garcia from this case based on “the timing and nature of the
innocence claim”). As previously explained, the record is not clear on what
Appellant knew and when. If Appellant knew of the potential attacks on the
victim’s credibility when he entered his plea, then that fact may be material
to credibility assessments on remand regarding any motivation for pursuing
withdrawal.10
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10 In Norton, the Commonwealth argued that the circumstances “suggested
that [Norton] simply was seeking to delay the prosecution and the
consequences that awaited him.” Norton, 201 A.3d at 117 (summarizing
Commonwealth’s argument to trial court). The Norton Court did not squarely
address that point.
However, in Carrasquillo, former Justice Stevens filed a concurring opinion,
remarking that “Trial courts must be permitted to evaluate the credibility of
an accused’s assertion of innocence, including the evidence of guilt, of delay,
and of ulterior or illicit motive in ruling upon an accused’s presentence motion
to withdraw a guilty plea.” Carrasquillo, 115 A.3d at 1293 (Stevens, J.,
concurring). In Islas, we approvingly quoted that concurring opinion, and
remarked that “neither the Commonwealth nor the trial court identified any
(Fo