Com. v. Vorrado, B. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRIAN JAMES VORRADO
Appellant No. 19 EDA 2015
Appeal from the Judgment of Sentence November 6, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010279-2012
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED OCTOBER 03, 2016
Brian James Vorrado appeals from the judgment of sentence entered
November 6, 2014, in the Philadelphia County Court of Common Pleas. The
trial court imposed an aggregate term of 13 to 45 years’ imprisonment,
following Vorrado’s guilty plea to charges of aggravated assault, robbery,
and possessing an instrument of crime (“PIC”).1 On appeal, Vorrado
contends the trial court erred when it denied his pre-sentence motion to
withdraw his guilty plea. For the reasons below, we affirm.
The Commonwealth provided the following factual basis for the plea at
Vorrado’s guilty plea hearing:
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*
Former Justice specially assigned to the Superior Court.
1
See 18 Pa.C.S. §§ 2702(a), 3701(a)(1), and 907(a), respectively.
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[O]n March 20, 2012, at around 6:55 in the evening in the area
of 2627 Muhlfeld [] Street in the city and county of Philadelphia
… Cecilia Wasko and her brother, Salvatore DeMarco, were home
at their residence … when [] Vorrado AKA Vincent Car[r] came
into the property demanding that his money be returned.
[Vorrado] proceeded to break a chair and remove the chair
leg from the chair. He began to strike Salvatore DeMarco with
the chair leg and when Cecilia Wasko came up to aid her
brother[, Vorrado] did strike Cecilia Wasko on her face and
ripped – demanded that she provide her money – the money to
[him] and proceeded to rip her wallet off of her neck that she
had on the lanyard around her neck.
…[H]e also pushed or pulled Cecilia Wasko down a flight of
stairs which caused her to break numerous bones in her face.
The Commonwealth would also present the live testimony
of Officer Thomas Brown … who had indicated that he arrived on
the scene and did see Ms. Wasko at the bottom on the stairs
bleeding profusely on or about her face and coughing up blood.
[Officer Brown would also testify that Ms. Wasko identified
Vorrado as the person who struck her and robbed her. See N.T.
4/11/2014, at 21.]
…[T]he complainant was transported to Mercy Fitzgerald
Hospital where she did received treatment on a couple of
occasions for the injuries to her face, [including] multiple broken
bones.
N.T. Guilty Plea 2/10/2014, at 9-10.
Vorrado was arrested and charged with aggravated assault, robbery,
receiving stolen property, theft, PIC, simple assault, and recklessly
endangering another person (“REAP”).2 His preliminary hearing was re-
scheduled twice when Wasko failed to appear for court. At the third listing,
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2
See 18 Pa.C.S. §§ 2702(a), 3701(a)(1)(ii), 3925(a), 3921(a),907(a),
2701(a), and 2705, respectively.
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on August 28, 2012, Wasko finally testified against Vorrado and the charges
were held for court.3 However, on December 10, 2012, prior to trial, Wasko
died of a drug overdose. Thereafter, the Commonwealth filed a motion
seeking to admit her testimony from the preliminary hearing at Vorrado’s
trial. The trial court granted the motion on April 16, 2013.
Vorrado’s case was scheduled for trial on February 10, 2014. Prior to
jury selection, Vorrado presented a motion in limine seeking to preclude the
Commonwealth from introducing at trial prison telephone calls in which
Vorrado discussed Wasko’s initial failure to appear and her subsequent
death. The court denied the motion. See Order, 2/10/2014. Vorrado was
also informed that he faced a mandatory minimum sentence of 25 years
imprisonment under the “three strikes” statute. See N.T. Motion Volume I,
2/10/2014, 7-10; 42 Pa.C.S. § 9714(a)(2). The case then proceeded to jury
selection.
Immediately after jury selection was completed, Vorrado decided to
enter an open guilty plea to the charges of aggravated assault, robbery and
PIC. In exchange for the plea, the Commonwealth de-mandatorized the
offenses so Vorrado would not be subject to the “three strikes” law. See
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3
We note Vorrado was also originally charged for his assault on Wasko’s
brother, Salvatore DeMarco. However, those charges were dismissed after
the third preliminary hearing when DeMarco failed to appear to testify. See
N.T., 8/28/2012, at 21-22.
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N.T., Guilty Plea Volume 1, 2/10/2014, at 5. Sentencing was deferred until
April 11, 2014, for the completion of a presentence investigation report.
Thereafter, Vorrado filed three pro se motions: (1) a motion to
withdraw his guilty plea, (2) a motion for removal of counsel, and (3) a
motion for continuance.4 At the April 11, 2014, sentencing hearing, new
counsel, Lou Mincarelli, Esq., entered his appearance for Vorrado, and prior
counsel was permitted to withdraw. Following an in camera hearing to
discuss Vorrado’s purported cooperation with law enforcement, Mincarelli
formally withdrew Vorrado’s pro se motions, including his motion to
withdraw his plea. Although Mincarelli wished to continue the sentencing
hearing “to do further research to prepare adequately … for the
sentencing[,]”5 the Commonwealth explained that it needed to preserve the
testimony of Officer Brown, who, in a few days, was being deployed for
military service in Abu Dhabi until November of 2014. See N.T., 4/11/2014,
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4
In the motion to withdraw his plea, Vorrado claimed he was “innocent of
the charges he pled guilty to[,]” but felt coerced into entering a plea
because of the threat of several high range sentences. Motion to Withdraw
Guilty Plea, 3/14/2014, at 1. In his motion seeking counsel’s removal, he
asserted counsel failed to file “multiple motions” and “speedballed” him into
entering the guilty plea. Motion to Remove Attorney, 4/4/2014, at 1.
Further, in his motion for a continuance, Vorrado requested additional time
to retain new counsel, and present evidence of his active participation as an
“informant/operative in[] a major high profile federal investigation/probe[.]”
Motion for Continuance, 4/4/2014, at 1.
5
N.T., 4/11/2014, at 8.
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12-13. Therefore, the court agreed to bifurcate the hearing, and after
Officer Brown testified, sentencing was continued until August 7, 2014.
However, on August 1, 2014, Vorrado filed a counseled motion to
withdraw his guilty plea. Specifically, he asserted (1) “his innocence of the
charges to which he pled guilty[;]” (2) the Commonwealth would not be
prejudiced if he were permitted to withdraw his plea; (3) prior counsel
“pressured him” into entering the plea; and (4) “he was confused as to the
potential ramifications of his guilty plea and the elements of the crimes to
which he pled guilty.” Motion to Withdraw Guilty Plea, 8/1/2014, at ¶¶ 9,
11-13. The court scheduled a hearing on Vorrado’s motion for September
11, 2014. At the conclusion of the hearing, the court denied the motion.
Vorrado filed a timely motion for reconsideration, which the trial court
denied on September 29, 2014.
On November 6, 2014, Vorrado was sentenced to an aggregate term
of 13 to 45 years’ imprisonment.6 He filed a post-sentence motion claiming
the trial court improperly denied his motion to withdraw his plea. The trial
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6
The court imposed a term of six to 20 years’ imprisonment for the charge
of aggravated assault, a consecutive term of six to 20 years’ imprisonment
for the charge of robbery, and a consecutive term of one to five years’
imprisonment for the charge of PIC.
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court denied the motion on November 26, 2014, and this timely appeal
followed.7
On appeal, Vorrado contends the trial court abused its discretion and
misapplied the law when it denied his pre-sentence motion to withdraw his
guilty plea. He claims his timely, unconditional assertions of innocence
“constituted fair and just reasons for allowing his plea to be liberally
withdrawn.” Vorrado’s Brief at 18. Moreover, he notes that, in addition to
his claim of innocence, he made “numerous colorable demonstrations as to
the reasoning behind his articulation of innocence[,]” namely, that he had
been coerced to enter the plea by his attorney, and that he never reviewed
the elements of the crimes charged. Id. at 19-20. Vorrado also argues the
trial court abused its discretion in finding the Commonwealth would have
been substantially prejudiced if he were permitted to withdraw his plea. Id.
at 41-42.
It is well-settled the decision whether to permit a defendant to
withdraw a guilty plea is within the sound discretion of the trial court.
Commonwealth v. Unangst, 71 A.3d 1017, 1019 (Pa. Super. 2013)
(quotation omitted). However, the standard applied differs depending on
whether the defendant seeks to withdraw the plea before or after
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7
On April 9, 2015, the trial court ordered Vorrado to filed a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Vorrado complied with the court’s directive, and filed a concise statement on
April 22, 2015.
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sentencing. When a defendant seeks to withdraw a plea after sentencing, he
“must demonstrate prejudice on the order of manifest injustice.”
Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011).
However, a pre-sentence motion to withdraw is decided under a more liberal
standard. Pursuant to Pennsylvania Rule of Criminal Procedure 591:
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).
In the seminal decision Commonwealth v. Forbes, 299 A.2d 268
(Pa. 1973), the Pennsylvania Supreme Court first defined the parameters for
granting a pre-sentence motion to withdraw:
[I]n determining whether to grant a pre-sentence motion for
withdrawal of a guilty plea, ‘the test to be applied by the trial
courts is fairness and justice.’ If the trial court finds ‘any fair
and just reason’, withdrawal of the plea before sentence should
be freely permitted, unless the prosecution has been
‘substantially prejudiced.’
Id. at 271 (internal citations omitted). Recently, the Supreme Court
reaffirmed the Forbes ruling, stating:
[The] Forbes decision reflects that: there 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. See Forbes, 450
Pa. at 190–91, 299 A.2d at 271.
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-1292 (Pa. 2015).
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Since the Forbes decision, the courts of this Commonwealth have
wrestled with the determination of what constitutes a “fair and just reason”
for withdrawal of a guilty plea. Until recently, the Supreme Court adopted
the view that a defendant’s bald assertion of innocence was sufficient. See
Commonwealth v. Randolph, 718 A.2d 1242, 1244 (Pa. 1998)
(defendant’s claim that he was innocent of several of the 13 burglary
charges to which he pled guilty was sufficient to justify pre-sentence
withdrawal of plea; “[a]ppellant made a clear assertion of his innocence
before the trial court … [and] the uncontroverted evidence of record fails to
reveal that the Commonwealth would have suffered any prejudice, let alone
substantial prejudice, had [a]ppellant’s withdrawal request been permitted.”)
(footnote omitted).
However, in Commonwealth v. Tennison, 969 A.2d 572, 577 (Pa.
Super. 2009), appeal denied, 982 A.2d 510 (Pa. 2009), a panel of this Court
upheld a trial court’s decision to deny a defendant’s pre-sentence motion to
withdraw his plea when his assertion of innocence was “conditional.” In that
case, the court found the defendant invoked his innocence in order to delay
his sentencing hearing, so that he could be sentenced first on a separate
federal matter: “Indeed no sooner would the [innocence] assertion be made
than it would be completely contradicted by statements admitting guilt
should sentencing be deferred until resolution of the federal case.” Id.
The panel opined:
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Our jurisprudence has stressed that the individual’s
fundamental right to a trial requires a liberal granting of pre-
sentence motions to withdraw guilty plea. Yet, it has also
recognized there is no absolute right to a pre-sentence
withdrawal of a plea, and has issued clear holdings that the
denial of such a motion is proper where the evidence before the
court belies the reason offered.
Statements made both by counsel and Appellant during
proceedings undermined the credibility of the assertion of
innocence made to the court. Under the specific facts of this
case, therefore, we cannot hold the court erred as a matter of
law when it determined the assertion was simply pretextual, and
thus failed to provide a fair and just reason to set aside
Appellant’s guilty plea.
Id. at 578.
Subsequently, an en banc panel of this Court, in Commonwealth v.
Katonka, 33 A.3d 44, 49 (Pa. Super. 2011) (en banc), distinguished
Tennison by limiting that decision to its facts, and re-asserted the Forbes
standard. In Katonka, the defendant did not state his innocence in his
written motion to withdraw the plea, but rather first claimed he was innocent
during the motion hearing only after the Commonwealth pointed out that he
had failed to do so. The trial court denied the motion to withdraw, finding
the defendant’s assertion of innocence “incredible.” Id. at 46. In reversing
the trial court’s decision, the en banc panel held:
Here, unlike the circumstances in Tennison, Katonka specifically
asserted that he was innocent of the crimes and this assertion
was neither contradictory nor conditioned on some other event.
The fact that Katonka first asserted his innocence only after
being prompted by the District Attorney is of no moment as
Katonka asserted his innocence prior to sentencing on two
separate occasions without condition, the second without any
prompting from the District Attorney.
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Id. at 49 (internal citations omitted). The Katonka Court also specifically
criticized the trial court for “rendering a credibility determination as to the
defendant’s actual innocence.” Id. Rather, the en banc panel opined:
“[A]s the record reflects that Katonka twice clearly asserted his innocence
without condition, under Forbes and Randolph, there was a ‘fair and just’
reason for withdrawal of the plea.” Id. at 50.
Most recently, however, in Carrasquillo, supra, the Pennsylvania
Supreme Court retreated from the per se approach it advocated in Forbes.
There, the defendant first asserted his innocence during his sentencing
allocution, claiming he had been framed by the Central Intelligence Agency
and possessed by the “Antichrist,” and insisting a polygraph test would
prove his innocence. Carrasquillo, supra, 115 A.3d at 1286. The trial
court, however, denied his motion to withdraw, finding the defendant’s
innocence claim was “implausible, insincere, and ‘nothing more than an
attempt to manipulate the justice system’ by introducing a belated
competency-based defense.” Id. at 1287. A divided en banc panel of this
Court later reversed based upon the Forbes standard, noting “trial courts
are ‘not permitted to make a determination regarding the sincerity of
[defendants’] unambiguous claims of innocence.’” Id. at 1288.
The Supreme Court, however, reversed the en banc panel on appeal.
The Carrasquillo Court stated the “existing per se approach to innocence
claims is unsatisfactory.” Id. at 1292. The Court explained:
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Presently, we are persuaded by the approach of other
jurisdictions which require that a defendant’s innocence claim
must be at least plausible to demonstrate, in and of itself, a
fair and just reason for presentence withdrawal of a plea. 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. 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, supra, 115 A.3d at 1292 (citation omitted and emphasis
supplied).
The Supreme Court concluded the trial court had acted within its
discretion when it denied the defendant’s motion to withdraw his plea. The
Court emphasized the defendant’s claim of innocence was first made during
his sentencing allocution, and was accompanied by “bizarre statements”
which “wholly undermined its plausibility, particularly in light of the
Commonwealth’s strong evidentiary proffer at the plea hearing.” Id. at
1293.
Notably, the Supreme Court came to the same conclusion in a
companion case decided the same day, Commonwealth v. Hvizda, 116
A.3d 1103 (Pa. 2015). In Hvizda, the defendant entered a guilty plea to
first-degree murder and possessing an instrument of crime for the stabbing
death of his estranged wife. Id. at 1104. At his sentencing hearing two
months later, the defendant sought to withdraw his plea, stating simply “I’m
here to maintain my innocence in the charge of murder in the first degree.”
Id. At a subsequent hearing, the defendant again stated he was innocent,
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but offered no evidence in support of his claim. The Commonwealth
requested the court deny the motion, and, in support, introduced into
evidence the defendant’s telephone conversations from prison in which he
stated that although he “‘did it’ … he wished to stand trial to ‘get some of
the story out.’” Id. The trial court thereafter denied the motion to
withdraw, finding “the Commonwealth had ‘presented compelling and unique
evidence to establish [the defendant’s] bald assertion of innocence was at
best pretextual and an attempt to manipulate the system.’” Id. at 1105. A
divided panel of this Court reversed on appeal based upon its belief that,
under Katonka, “credibility assessments relative to a defendant’s claim of
innocence were impermissible.” Id.
The Supreme Court, once again, disagreed with the decision of this
Court and opined:
In the companion case of Carrasquillo, … we have
determined that a bare assertion of innocence—such as [the
defendant] provided as the basis for withdrawing his guilty
plea—is not, in and of itself a sufficient reason to require a court
to grant such a request. See Carrasquillo, [] 115 A.3d at
1285. Accordingly, and for the reasons set forth more fully in
that case, the common pleas court did not err in denying [the
defendant’s] withdrawal motion.
Id. at 1107.8
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8
We note the Hvizda Court also rejected the Commonwealth’s argument
that the post-sentence “manifest injustice” standard applied under the facts
of that case because the only possible sentence the trial court could have
imposed was life imprisonment. In doing so, the Court disapproved of its
prior decision in Commonwealth v. Lesko, 467 A.2d 307 (Pa. 1983),
(Footnote Continued Next Page)
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With this background in mind, we consider the ruling of the trial court
in the present case. The court first determined Vorrado did not provide a
“fair and just reason” for the pre-sentence withdrawal of his guilty plea. The
court opined:
[T]his Court could not ignore the conditional basis of [] Vorrado’s
claims when evaluating [his] request to disregard his plea of
guilt. This Court duly considered [Vorrado’s] previous conniving
efforts to prevent the victim’s appearance in court with
“assisted” drug abuse, his designed delays over a two year
period, the precipitous timing of change of plea immediately
after jury selection, and his knowledge of the Commonwealth’s
announced future critical witness unavailability and difficulties.
The conditional basis and timing of the filing of [his] withdraw of
his pro se Motion to Withdraw also influenced the Court.
[Vorrado] withdrew his previous pro se Motion only after he had
been granted extra time to gain mitigating credit for confidential
cooperation.
Trial Court Opinion, 10/14/2015, at 12.
Conversely, Vorrado emphasizes the timeliness of his “clear assertions
of innocence,” which he first made in his pro se motion filed “slightly over a
month following his guilty plea,” and later repeated in his counseled motion.
See Vorrado’s Brief at 23. Moreover, unlike the conditional withdrawal in
Tennison, or the “last-minute, bald assertion of innocence” offered in
Carrasquillo, Vorrado claims he “made colorable demonstrations as to the
reasoning behind his articulation of innocence,” both in his pro se and
_______________________
(Footnote Continued)
holding Lesko “is incompletely reasoned on the relevant point and should
not remain controlling authority.” Hvizda, supra, 116 A.3d at 1105.
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counseled petitions to withdraw the plea. Id. at 19, 20. He explains he was
coerced to plead guilty by his former attorney, he did not review the
elements of the crimes before entering his plea, and he identified a new,
previously unavailable exonerating witness.9 Id.
We conclude, however, that under the unique circumstances presented
in this case, the trial court did not abuse its discretion in denying Vorrado’s
motion to withdraw his plea. A review of the record reveals Vorrado entered
his plea only after (1) the jury had been selected, (2) his motion to preclude
the admission of his intercepted prison phone calls was denied, and (3) the
Commonwealth had arranged to transport eyewitness Salvatore DeMarco to
court on a stretcher. See N.T., 9/11/2014, at 18-19; Order, 2/10/2014.
Although he first proclaimed his innocence in a pro se motion filed just over
a month later, he knowingly and voluntarily withdrew that motion less
than a month later in order to proceed to sentencing. See N.T., 4/11/2014,
at 9.10 At that time, the court bifurcated the sentencing hearing, upon
Vorrado’s motion, so that his newly retained counsel could have more time
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9
Although counsel stated at the motion to withdraw hearing that the alleged
witness was “outside the courtroom,” he did not call the witness to testify.
N.T., 9/11/2014, at 9. Further, while counsel indicated he provided the
Commonwealth with a copy of the witness’s statement to his investigator, no
such statement is included in the certified record. See id.
10
Indeed, at that time, counsel stated: “I would ask for bifurcation of the
sentencing as you are just allowing me to enter for me to do further
investigation to prepare adequately for my client for the sentencing.”
N.T., 4/11/3014, at 8 (emphasis supplied).
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to prepare, and present evidence of his purported cooperation with law
enforcement. However, the court took the testimony of first responder
Officer Brown, because the officer was scheduled to be deployed out of the
country a few days later. See Id. at 12-16. It was only after Officer Brown
was deployed that Vorrado’s attorney filed a second motion to withdraw his
plea one week before the scheduled sentencing hearing. As the trial court
opined:
After Officer Brown was deployed, [Vorrado] pounced upon the
opportunity to prevent the Commonwealth’s ability to prosecute
him and filed a new and improved Motion to Withdraw his Guilty
Plea. In short, examination of the record reveals his calculated
scheme to avoid responsibility for his heinous actions.
Trial Court Opinion, 10/14/2015, at 13.
In addition to the gamesmanship Vorrado displayed – by (1) filing a
pro se motion to withdraw after a jury was selected, (b) withdrawing the
motion after securing new counsel and attempting to get sentencing credit
for his cooperation with authorities, and (3) refiling the motion after a crucial
witness became unavailable – the trial court was also presented with
Vorrado’s intercepted prison phone calls which revealed his attempt to
“orchestrate Ms. Wasko’s nonappearance at his preliminary hearings and
trial listings with induced narcotics abuse.”11 Id. at 8. Considering all of the
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11
See Philadelphia Prison Phone Calls of Vorrado, dated 8/15/2012 (telling
“Female D” to “[h]ave a nice party” with Wasko the night before the second
preliminary hearing); 8/16/2012 (telling “Female D” she is “going to have
one more rough night [doing drugs with Wasko] on the 27 th,” the night
(Footnote Continued Next Page)
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above circumstances, we find the court acted well within its discretion when
it determined Vorrado’s assertion of innocence was not “plausible.”
Carrasquillo, supra, 115 A.3d at 1292. Like in Carrasquillo, Vorrado’s
intercepted prison phone calls, as well as the dubious timing of the filing of
his motions to withdraw, “wholly undermined” the plausibility of his
professions of innocence. Id. at 1293. Although Vorrado insists his
protestations of innocence were corroborated by his “explanations for his
assertions”12 – i.e., counsel forced him to plead guilty, he did not review the
elements of the crimes, and he found a new witness – none of these
explanations constitute a “colorable demonstration” that permitting
withdrawal of his plea “would promote fairness and justice.” Carrasquillo,
supra, 115 A.3d at 1292.
_______________________
(Footnote Continued)
before the third preliminary hearing listing), 8/20/2012 (telling “Female D”
to take Wasko “to a hotel [or] Atlantic City” so she will not appear for the
third listing); 8/26/2012 (telling “Bobby” and “Female D” to get Wasko out
of her house before the third listing), 10/30/2012 (stating to “Female D”
that “when stuff like this happens in a drug house, you get robbed, you beat
somebody up, you don’t call the cops! They should have took it on the chin.
They robbed me.”), 12/6/2012 (stating to “Female D,” “[t]ell Anthony
[presumably one of Vorrado’s friends] he said he wanted to do something for
me right … [t]ell him, that he knows the phone box is in that yard. Right?
You understand? Like, the night before [trial] – you follow me?”);
12/7/2012 (stating “Somebody’s gotta take that phone out [at Wasko’s
house] like … two nights before [trial].”).
12
Vorrado’s Brief at 29.
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Furthermore, while we agree Vorrado’s motion should be adjudged
under the pre-sentence standard, we emphasize that here, Vorrado
proclaimed his innocence only after his sentencing hearing had begun, the
Commonwealth presented the testimony of its “impeccable”13 fact witness,
Officer Brown, and Officer Brown subsequently became unavailable. Relying
on the most recent pronouncements of the Supreme Court in Carrasquillo
and Hvizda, we find no abuse of discretion on the part of the trial court in
concluding Vorrado failed to provide a fair and just reason for the withdrawal
of his guilty plea. Because Vorrado did not demonstrate this prerequisite,
we need not consider whether the withdrawal of his plea would substantially
prejudice the Commonwealth. See Carrasquillo, supra, 115 A.3d at 1293
n.9. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2016
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13
N.T., 9/11/2014, at 36 (trial court describing testimony of Officer Brown,
noting his absence would be “an extreme loss”).
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