Com. v. Seiders, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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.

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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).

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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.

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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 r:a CUMBERLAND COUNTY, CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA

• ra u e r• DEREK. DEREK C. SEIDERS SEIDERS :: CP-21-CR-1396-2022 f a � -1% OPINION PURSUANT PURSUANT TO PA.R.A.P. PA.R.A.P. 1925 c g N � -r fr P

Peck, J:,;July • 23 ,2024— ': co co c N ,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.

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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 2

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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.

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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.

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... "[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 well- welt- 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 5

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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

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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

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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

•' .E..:c Distriouto copies JUL 224.2824 •iqt lbuted JUl 4 2024

Footnotes

[11] Plea counsel was was Andrea Haynes, Esquire. Andrea Haynes, Esquire 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

[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. 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.