author:
Chief Justice SAYLOR.

      Justice STEVENS,

text:
    115 A.3d 1284
    COMMONWEALTH of Pennsylvania, Appellant v. Jose A. CARRASQUILLO, Appellee.
    Supreme Court of Pennsylvania.
    Argued Sept. 10, 2014.
    Decided June 15, 2015.

      Hugh J. Burns Jr., Esq., Philadelphia, Daniel Francis Cree-don IV, Esq., for Commonwealth of Pennsylvania.
    Karl Baker, Esq., Philadelphia, Courtney Brooke Kirschner, Esq., Defender Association of Philadelphia, for Jose A. Car-rasquillo.
    CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
   OPINION

Chief Justice SAYLOR.

In this appeal, we consider the criteria governing the disposition of a presentence motion to withdraw a guilty plea. Our decision turns on the conclusion that a bare assertion of innocence is not, in and of itself, a sufficient reason to require a court to grant such a request.

On the morning of June 1, 2009, two girls were sexually assaulted by the same man. The first victim, sixteen-year-old C.J., escaped after offensive touching. Eleven-year-old N.O., however, was threatened and lured into an alleyway, where she was brutally raped and sustained severe injuries requiring hospitalization and surgery.

Police investigated and arrested Appellee, Jose A. Carras-quillo, who made inculpatory statements during interrogation. Charges were lodged in two separate criminal proceedings, which were later consolidated for trial. After a psychiatric evaluation confirmed that Appellee was competent to be tried, he decided to enter open guilty pleas to various sexual offenses, including rape, as well as other crimes.

At the plea colloquy, the Commonwealth proffered that the evidence against Appellee included his own statements, identification testimony from both victims, video surveillance recordings apparently showing Appellee with or in the vicinity of each victim close in time to the assaults, and DNA and fingerprint evidence linking Appellee to the rape of N.O. See N.T., Aug. 11, 2010, at 32-45.

The plea court advised Appellee of his pertinent constitutional rights and the implications of waiver. After further explaining that Appellee faced possible sentences of life and nine years’ imprisonment, respectively, in the cases relating to N.O. and C.J., the court accepted the pleas and entered verdicts. Appellee was also informed that he could seek to withdraw his guilty plea at any time before sentencing and that the court “would have to consider whether or not the reasons for you doing so are fair and necessary, fair and appropriate, compared to the prejudice that that might cause to the Commonwealth’s case and to their witnesses, and particularly in this case to child witnesses.” Id. at 63. See generally Commonwealth v. Forbes, 450 Pa. 185, 190, 299 A.2d 268, 271 (1973).

Three and one-half months later, the court conducted a sentencing hearing. The prosecutor read into evidence a report prepared for the Sexual Offenders Assessment Board, which described Appellee’s multiple sexually violent episodes and concluded that Appellee was a sexually violent predator for the purposes of Megan’s Law. See 42 Pa.C.S. §§ 9794(c), 9795.4(b) (superseded). The report portrayed Appellee as a cruel assailant, who “was sexually aroused by acts of violence, domination, or threats upon the victims” and for whom self-reported rage and anger were secondary motivators. N.T., Nov. 30, 2010, at 49-66. In addition, N.O., her parents, grandmother, teacher, and physician testified to the severe physical and emotional trauma that N.O. had suffered. Among other things, the witnesses stated that memories of the brutal attack continued to affect N.O.’s emotional and psychological well-being. See id. at 73-75, 86-88. In mitigation, Appellee offered expert testimony describing neuropsy-chological impairment affecting his behavior, and a letter from his paternal aunt requesting leniency. See id. at 90-122.

After the defense rested, Appellee explained in allocution that he had pled guilty to spare N.O. suffering, and he therefore expressed surprise at his portrayal during the sentencing hearing. Appellee also stated that he had entered his plea because, absent a polygraph examination, his account would not have been believed and he would not have received a fair trial. He continued to discuss scenarios unrelated to the sexual assault of N.O., in which the CIA purportedly had victimized him by seeking to employ him as an assassin abroad, and where a serpent assertedly appeared and “[t]he Antichrist, he came out of me[.]” See id. at 123. Claiming that he did not commit the assault against N.O. and had been framed, Appellee insisted that a polygraph test would prove his innocence and asked to withdraw his guilty plea. See id. at 122-24.

The prosecutor responded that permitting Appellee to withdraw his guilty plea would prejudice the Commonwealth, because N.O. had a sense of closure knowing that she did not have to testify; forcing her to testify and “re-open old wounds ... would be extremely prejudicial to her well-being.” Id. at 129.

The sentencing court denied the motion to withdraw. Once again, Appellee requested an investigation and a polygraph, saying “[i]f not, you go ahead and give me life.” Id. at 133. Sentencing proceeded, and Appellee received an aggregate term of incarceration of 30 to 66 years.

Upon Appellee’s appeal, the sentencing court issued an opinion setting forth its rationale. See Commonwealth v. Carrasquillo, Nos. CP-51-CR-0009652-2009 & CP-51-CR-0009653-2009, slip op. at 9 (C.P.Phila. Dec. 29, 2011). Initially, the court reiterated that the grant or denial of a motion to withdraw is discretionary in the trial court at any time before sentence imposition and that defendants have no absolute right to the requested relief. See id. (citing Pa.R.Crim.P. 591(A)); see also Forbes, 450 Pa. at 190, 299 A.2d at 271; accord Commonwealth v. Randolph, 553 Pa. 224, 228-29, 718 A.2d 1242, 1244 (1998). The court recognized, however, the directive of this Court that such discretion should be exercised liberally in defendants’ favor. See Forbes, 450 Pa. at 190, 299 A.2d at 271; accord Commonwealth v. Santos, 450 Pa. 492, 494-95, 301 A.2d 829, 830 (1973) (“The trial courts in exercising their discretion must recognize that ‘before judgment, the court should show solicitude for a defendant who wishes to undo a waiver of all constitutional rights that surround the right to trial — perhaps the most devastating waiver possible under our Constitution.’ ” (quoting, indirectly, Dukes v. Warden, Conn. State Prison, 406 U.S. 250, 258, 92 S.Ct. 1551, 1555, 32 L.Ed.2d 45 (1972) (Stewart, J., concurring))).

Such principles, the court noted, were distilled by this Court in Forbes into the governing requirement that a presentence motion to withdraw a guilty plea should be granted if supported by a fair and just reason and substantial prejudice will not inure to the Commonwealth. See Forbes, 450 Pa. at 190-91, 299 A.2d at 271 (referencing various federal authorities and secondary materials). Nevertheless, in the sentencing court’s view, denial is appropriate where the reasons offered by a defendant are belied by the record. See Carrasquillo, Nos. CP-51-CR-0009652-2009, et al., slip op. at 9 (citing, inter alia, Commonwealth v. Tennison, 969 A.2d 572, 578 (Pa.Super.2009)).

As applied to the present circumstances, the sentencing court reasoned that Appellee’s claim of innocence — premised in part on an explanation that he had been framed in an elaborate scheme orchestrated by the Central Intelligence Agency and conditioned upon a polygraph test — was implausible, insincere, and “nothing more than an attempt to manipulate the justice system” by introducing a belated competency-based defense. Id. at 10. The court stressed that Appellee asserted his innocence nearly four months after entering his guilty plea and only minutes before sentencing, timing which also diminished his credibility. In the sentencing court’s view, rather than a good-faith advancement of innocence, Appellee’s “allocution was a guilty, shamed reaction to harsh testimony at the sentencing hearing, in which he heard himself described as a ‘monster,’ ‘pedophile,’ and ‘rapist’ by the victim and her family as they recounted the suffering and anguish he inflicted upon them.” Id. at 11. Finally, the court found that the Commonwealth would be substantially prejudiced, because withdrawal of the plea would place “the Commonwealth in the dilemma of reopening the wounds of a healing child or withdrawing its prosecution.” Id. at 13 (footnote and citation omitted).

On appeal, a divided en banc panel of the Superior Court reversed, holding that the trial court abused its discretion in denying Appellee’s request to withdraw his guilty plea. See Commonwealth v. Carrasquillo, 78 A.3d 1120, 1131 (Pa.Super.2013). In terms of the fair-and-just criterion deriving from Forbes, the Superior Court majority acknowledged that Appellee had made “fantastical and outlandish claims during his sentencing hearing.” Id. at 1126. The majority nonetheless found Appellee’s claim of innocence to be controlling, stating that “our law does not (contrary to the Commonwealth’s suggestion) require some quantum of ‘rational support’ as a prerequisite for a plea withdrawal.” Id. Along these lines, the majority indicated:

We find no basis in precedent to authorize trial courts to import a rationality test or to examine the clarity or articulateness of movants’ words in these circumstances. We are unprepared to bar an otherwise lawful motion because the language used includes not only a clear assertion of innocence, but also outlandish verbiage and extraneous references.

Id. at 1127 (footnote omitted).

The majority next refused to consider the strength of the Commonwealth’s evidence against Appellee, as it found this to have no bearing on the dispositive innocence claim. See id. at 1127-28 (quoting Commonwealth v. Katonka, 33 A.3d 44, 49-50 (Pa.Super.2011) (en banc)). Instead, the majority reinforced that “[w]e have made it clear that, in assessing a defendant’s presentence petition to withdraw a guilty plea, trial courts are ‘not permitted to make a determination regarding the sincerity of [defendants’] unambiguous claims of innocence.’ ” Id. at 1128 (quoting Commonwealth v. Unangst, 71 A.3d 1017, 1022 (Pa.Super.2013)). Accordingly, in the majority’s view, an unambiguous assertion of innocence— regardless of its rationality, clarity, sincerity, or plausibility— was sufficient to warrant withdrawal.

In terms of the finding that Appellee had an ulterior motive in that he was attempting to manipulate the process, the Superior Court majority found no supportive evidence. See id. On this point, the majority quoted from Unangst in its rejection of a similar contention:

[A]ny time a defendant moves to withdraw a guilty plea prior to sentencing, he could be accused of engaging in a dilatory tactic to avoid sentencing. Thus, if we were to permit this type of reasoning to defeat a presentence motion to withdraw, we would be ignoring the clear pronouncements from our Supreme Court in Forbes and Randolph.

Id. (quoting Unangst, 71 A.3d at 1022); accord id. (positing that the Commonwealth had offered no evidence that Appellee “asserted his innocence as a pretext, or as a ploy to game the system”).

The majority also held that the trial court had abused its discretion in finding that withdrawal of the plea would result in substantial prejudice to the Commonwealth. Quoting Commonwealth v. Gordy, 73 A.3d 620 (Pa.Super.2013), it explained that “prejudice is about the Commonwealth’s ability to try its case, not about the personal inconvenience to complainants unless that inconvenience somehow impairs the Commonwealth’s prosecution.” Carrasquillo, 78 A.3d at 1129 (quoting Gordy, 73 A.3d at 624 (citation omitted)); cf. Commonwealth v. Kirsch, 930 A.2d 1282, 1286 (Pa.Super.2007) (“[Pjrejudice cannot be equated with the Commonwealth being made to do something it was already obligated to do prior to the entry of the plea.”). Thus, according to the majority, the Commonwealth’s interest in shielding N.O. from testifying was insufficient as a matter of law to establish prejudice, because withdrawal meant only that the Commonwealth would have to try the case and present N.O. as a witness, which it was already obliged to do before the plea. See Carrasquillo, 78 A.3d at 1129.

Judge Gantman concurred in the result without opinion, while Judge Mundy, joined by then-President Judge Bender and Judge Panella, dissented. The dissent reasoned that the majority accorded too much weight to Appellee’s innocence claim; instead, the dissent posited that the entire exchange cast a different light on the assertion. In this respect, the dissenting judges viewed Appellee’s claim as conditional, given that various of Appellee’s statements suggested that it was meant to be dependent on the affordance of a polygraph examination. The dissent would have held that such a conditional invocation was not a fair and just reason to support withdrawal of the guilty plea. See id. at 1132-36 (Mundy, J., dissenting, joined by Bender, P.J., and Panella, J.).

The Commonwealth petitioned for allowance of appeal. We accepted review, inter alia, to clarify whether the common pleas courts must accept a bare assertion of innocence as a fair and just reason for withdrawal. See Commonwealth v. Carrasquillo, 624 Pa. 503, 86 A.3d 830 (2014) (per curiam).

Presently, the Commonwealth criticizes the Superior Court’s holding as being fundamentally inconsistent with the discretion invested in sentencing courts. See Brief for Appellant at 12 (“The Superior Court’s inflexible rule treats a plea of guilty as a meaningless formality, revocable at the defendant’s whim upon utterance of magic words, and employable by him to manipulate or frustrate the justice system.”); accord United States v. Barker, 514 F.2d 208, 221 (D.C.Cir.1975) (“Were mere assertion of legal innocence always a sufficient condition for withdrawal, withdrawal would effectively become an automatic right.”); State v. Smullen, 118 N.J. 408, 571 A.2d 1305, 1309 (1990) (“Liberality in exercising discretion does not mean an abdication of all discretion.” (quoting State v. Huntley, 129 N.J.Super. 13, 322 A.2d 177, 179 (1974))). In the Commonwealth’s view, the courts of common pleas should be afforded latitude to evaluate the sincerity and plausibility of the justification for withdrawing a guilty plea offered by an accused. See, e.g., Brief for Appellant at 21 (“A court exercising discretion must necessarily be entitled to decide whether a purported profession of innocence is legitimate, or it is instead an empty demonstration made in an effort to create delay or disrupt the prosecution.”). The Commonwealth believes that such an approach reconciles with Forbes, in that liberality should extend to plausible claims of innocence, which would not be lightly discredited. See id. at 22. It is the Commonwealth’s position that the inflexible rule reflected in the Superior Court’s decisions “degrade[s] the otherwise serious act of pleading guilty[.]” Id. at 18, 22 (quoting United States v. Hyde, 520 U.S. 670, 677, 117 S.Ct. 1630, 1634, 137 L.Ed.2d 935 (1997)).

The Commonwealth traces what it views as a perversion of the Forbes standard to an en banc decision of the Superior Court in Commonwealth v. Cole, 387 Pa.Super. 328, 564 A.2d 203 (1989). See id. at 333-34, 564 A.2d at 205 (stating that “where a defendant has asserted innocence ... it has been held to be an abuse of discretion for a trial court to deny a pre-sentence petition for withdrawal of a guilty plea.”). The Commonwealth highlights, however, that concerns with a blanket approach were registered at that time of Cole’s issuance and going forward. See id. at 338, 564 A.2d at 207-08 (McEwen, J., concurring) (suggesting that “[t]he admonition of Forbes [and its progeny] that a presentence request to withdraw a guilty plea be ‘construed liberally’ in favor of the accused, is not a direction to blithely ignore the obvious, or to heedlessly abandon reason”); id. at 339, 564 A.2d at 208 (Kelly, J., concurring) (cautioning that treating a claim of innocence as a per se basis for withdrawal would require that “a disingenuous incantation ... by judicial alchemy would become magic words with which to evade the legitimate requirement of ‘just cause’ for withdrawal”). The Commonwealth complains that subsequent decisions of the intermediate court have followed the lead of the Cole majority to erroneously equate the mere assertion of innocence with a fair-and-just reason under Forbes. See Brief for Appellant at 19 (citing Commonwealth v. Rish, 414 Pa.Super. 220, 224, 606 A.2d 946, 947 (1992), and Commonwealth v. Iseley, 419 Pa.Super. 364, 374, 615 A.2d 408, 413 (1992)). Although the Commonwealth references a few cases as taking a contrary view, it observes that the per se approach became entrenched in and after the recent decision of an en banc panel in Katonka, 33 A.3d at 50 & n. 2. This, the Commonwealth asserts, is manifestly contrary to the weight of authority in other jurisdictions and warrants correction.

Appellee, in his brief, embraces the per se approach to innocence claims, arguing that it derives specifically from Forbes, and has been implemented by this Court in Commonwealth v. Woods, 452 Pa. 546, 550-51, 307 A.2d 880, 881-82 (1973), and in a strong admonishment of the Superior Court’s departures in Randolph, 553 Pa. at 230, 718 A.2d at 1244-45 (criticizing the intermediate court’s refusal to give weight to an innocence assertion as a “cavalier disregard of the Forbes standard”). Appellee stresses that the intermediate court took heed of Randolph by effectuating the per se approach to innocence claims in a series of ensuing decisions. See Brief for Appellee at 14 (citing Gordy, 73 A.3d at 629, Unangst, 71 A.3d at 1021, Commonwealth v. Pardo, 35 A.3d 1222, 1230 (Pa.Super.2011), Katonka, 33 A.3d at 50 & n. 2, Kirsch, 930 A.2d at 1285-86, Commonwealth v. Goodenow, 741 A.2d 783, 787 (Pa.Super.1999), Commonwealth v. Hutchins, 453 Pa.Super. 209, 212-13, 683 A.2d 674, 676 (1996), Rish, 414 Pa.Super. at 224, 606 A.2d at 947, and Cole, 387 Pa.Super. at 333-34, 564 A.2d at 205). While Appellee recognizes the bright-line nature of this approach, he emphasizes that relief is not “automatic,” since the common pleas court may still consider prejudice to the Commonwealth. See, e.g., Katonka, 33 A.3d at 50 (remanding for such a prejudice assessment).

According to Appellee, requiring the accused to offer evidence of the sincerity or plausibility of his assertion contravenes the liberality required by Forbes and unfairly shifts the burden of proof from the prosecution onto the defendant, thereby impairing the defendant’s constitutional rights to a fair trial and to counsel. Along these lines, Appellee suggests that allowance for credibility judgments will yield inconsistent results, particularly since “intent to delay or manipulate the prosecution can be alleged in every single instance of a defendant moving to withdraw his guilty plea.” Brief for Appellee at 10; accord, Unangst, 71 A.3d at 1022 (“[I]f we were to permit this type of reasoning to defeat a presentence motion to withdraw, we would be ignoring the clear pronouncements from our Supreme Court in Forbes and Randolph.”). Although the clear weight of the federal authority is against him, see supra note 6, Appellee asserts that we should not follow the lead of the federal courts, since the Federal Rules of Criminal Procedure establish a different system for when and how pleas may be withdrawn, encompassing allowance of withdrawal for “any reason or no reason” prior to acceptance of the plea. See Brief for Appellee at 20 n. 6 (“A more strict interpretation of the ‘fair and just’ standard makes more sense under the federal rules because of the additional procedural protection afforded to withdrawal of pleas prior to their being accepted.” (citing Fed.R.Crim.P. 11(d))).

Appellee also posits that there are practical concerns attending movement away from a bright-line approach:

[I]t raises questions as to what sort of evidence would be admissible in support of the motion (offer of proof, documentation, testimonial), what standard would be used to weigh the evidence (prima facie, preponderance of the evidence, beyond a reasonable doubt), and how would courts handle cases involving alternative defenses (self-defense, diminished capacity, insanity). The hearing on the motion to withdraw would become a mini-trial and would open the door to vast amounts of new appellate litigation.

Id. at 28. Appellee cautions against “blur[ring] the line” between pre- and post-sentence withdrawal standards. Id. at 28.

The issues posed, involving the application of the Forbes standard, are questions of law. Accordingly, our review of the Superior Court’s decision is plenary. See Commonwealth v. Batts, 620 Pa. 115, 127, 66 A.3d 286, 293 (2013).

As amply reflected above, this Court’s 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. The perfunctory fashion in which these principles were applied to the circumstances presented in Forbes, as well as in the ensuing decision in Woods, 452 Pa. at 546, 307 A.2d at 880, also lent the impression that this Court had required acceptance of a bare assertion of innocence as a fair-and-just reason. See, e.g., Forbes, 450 Pa. at 192, 299 A.2d at 272 (“Obviously, [the] appellant, by [his] assertion of innocence — so early in the proceedings^ i.e., one month after the initial tender of a plea,] — offered a ‘fair and just’ reason for withdrawal of the plea.”).

Both Forbes and Woods, however, are distinguishable on their facts, particularly in terms of the timing of the innocence claim. In Forbes, the Court noted that the claim was made about one month after the plea tender. See id. In Woods, albeit that the innocence declaration was made over a year after the plea was accepted, this Court highlighted its occurrence nine months before sentencing. See Woods, 452 Pa. at 550-51, 307 A.2d at 882. Nevertheless, in light of the Randolph Court’s forceful emphasis upon such an innocence declaration, and its concomitant rejection of the common pleas and intermediate courts’ reliance on the defendant’s previous concessions to guilt, see Randolph, 553 Pa. at 230-31, 718 A.2d at 1244-45, we cannot criticize the intermediate court for its understanding that credibility judgments relative to innocence were foreclosed. See, e.g., Katonka, 33 A.3d at 49 (citing Randolph for the proposition that this Court had condemned credibility determinations as to a defendant’s innocence in the plea withdrawal context). In other words, we acknowledge the legitimate perception of a per se rule arising from this Court’s decisions.

As with other such bright-line rules, however, the principle is subject to the axiom that the holding of a decision is to be determined according to the facts under consideration, see, e.g., Oliver v. City of Pittsburgh, 608 Pa. 386, 395, 11 A.3d 960, 966 (2011), and continuing evaluation as experience with new fact patterns offers further insight into the wisdom of a per se approach. Indeed, we recently observed, that, “for better or for worse, the experience with broadly stated prophylactic rules often has been that they cannot be sustained on their original terms.” Commonwealth v. Henderson, 616 Pa. 277, 287, 47 A.3d 797, 803 (2012).

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. See supra note 6 (citing cases). 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 affor-dance of a degree of discretion to the common pleas courts.

This case, in our view, illustrates why the existing per se approach to innocence claims is unsatisfactory. Here, Appellee’s assertion was first made in sentencing allocution, after the close of the evidentiary record (which, in any event, was dedicated to a different purpose, since no motion to withdraw had been advanced before or during such record’s development). No request was made to reopen the record for an orderly presentation in support of Appellee’s request. Moreover, the bizarre statements made by Appellee in association with his declaration of innocence wholly undermined its plausibility, particular in light of the Commonwealth’s strong evidentiary proffer at the plea hearing. In the circumstances, the common pleas court should not have been required to forego sentencing; rather, we find that it acted within its discretion to refuse the attempted withdrawal of the plea.

The order of the Superior Court is reversed, and the matter is remanded for reinstatement of the judgment of sentence. Jurisdiction is relinquished.

Former Chief Justice CASTILLE and former Justice McCAFFERY did not participate in the decision of this case.

Justices EAKIN, BAER, TODD, and STEVENS join the opinion.

Justice STEVENS files a concurring opinion in which Justice BAER joins.

Justice STEVENS,

concurring.

I join the majority in its entirety.

I write separately to emphasize my disapproval with the Superior Court’s bright-line rule that prohibited, as a matter of law, trial courts from assessing the credibility of an “assertion of innocence” made in the context of a presentence motion to withdraw a guilty plea. This per se approach, which was based upon the utterance of “magic words,” undermined the trial court’s role as a finder of fact and removed necessary discretion from the court. I agree with the majority that such an approach was unsatisfactory. 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 presen-tence motion to withdraw a guilty plea.

Moreover, since the majority is reversing the Superior Court as it relates to the first issue, I agree with the majority that it is not necessary, for disposition of this particular case, to reach the Commonwealth’s second issue, which concerns prejudice to the Commonwealth. However, in order to provide guidance to the courts below, it is clear the Commonwealth demonstrated it would have been substantially prejudiced by the withdrawal of Appellee’s guilty plea.

I specifically disagree with the Superior Court that the evidence of the psychological and emotional harm to the young victim, N.O., was insufficient as a matter of law to demonstrate substantial prejudice to the Commonwealth or that it was largely irrelevant to the inquiry of prejudice. The Superi- or Court’s bright-line rule, which attributed no value to the interests of the victims of crime, is inapposite to public policy in this area of the law and to the value of the criminal justice system generally. Rather, as the trial court properly concluded, evidence of the harmful effect of Appellee’s withdrawal of his plea upon N.O.’s psychological and emotional well-being was relevant to the trial court’s inquiry since it had the tendency to make the Commonwealth’s claim of prejudice more or less probable than it would be without that evidence.

As to whether the Commonwealth adduced substantial evidence of the psychological harm to N.O., I agree with the trial court that it did so in this case. The Commonwealth relied upon videotaped testimony of N.O., which was corroborated by testimony from N.O.’s family and a school principal, to argue the child victim’s psychological and emotional well-being would be compromised if the trial court granted Appellee’s motion to withdraw his guilty plea. Based on the evidence presented, the trial court concluded N.O. was emotionally vulnerable and opined harm would be caused by denying N.O. closure and threatening to force N.O. to relive the brutal rape she endured by testifying at trial. I find no error in the trial court’s conclusion of substantial prejudice in this regard.

Justice BAER joins this concurring opinion.

      . This matter was reassigned to this author.

      . En banc consideration by the intermediate appellate court occurred on reargument, after a three-judge panel initially had reversed in a memorandum decision.

      . The dissenting judges did not recognize that the passage of the discussion between Appellee and the sentencing court which they regarded as "the most telling” of Appellee’s intentions ensued after the court had rendered its ruling denying withdrawal. See N.T., Nov. 30, 2010, at 132-33.

      . Earlier decisions of the intermediate court also are reflective of a bright-line approach. See, e.g., Commonwealth v. Boofer, 248 Pa.Super. 431, 433, 375 A.2d 173, 174 (1977) ("An assertion of innocence is a 'fair and just reason' for permitting withdrawal of a guilty plea.” (citation omitted)).

      . See Brief for Appellant at 19 n. 5 (citing Tennison, 969 A.2d at 575 (indicating that "a fair and just reason has to be a credible reason”), and Commonwealth v. Miller, 432 Pa.Super. 619, 628-29, 639 A.2d 815, 819 (1994) (upholding a common pleas court’s refusal to permit withdrawal of a plea, in part, because the defendant's “alleged assertion of innocence rings hollow”)).

      . The following decisions exemplify the proposition that a mere, bare, or non-colorable assertion of innocence is insufficient, in and of itself, to support withdrawal of a plea: United States v. Buholtz, 562 Fed.Appx. 213, 214 (5th Cir.2014); United States v. Shumaker, 475 Fed.Appx. 817, 821 (3d Cir.2012) (quoting United States v. Jones, 336 F.3d 245, 252 (3d Cir.2003)); United States v. Gonzalez, 647 F.3d 41, 53 (2d Cir.2011); United States v. Reid, 387 Fed.Appx. 392, 394 (4th Cir.2010); United States v. Goodson, 569 F.3d 379, 383 (8th Cir.2009); United States v. Wolf, 44 Fed.Appx. 16, 19 (7th Cir.2002); Everard v. United States, 102 F.3d 763, 766 (6th Cir.1996); Barker, 514 F.2d at 221; State v. Munroe, 210 N.J. 429, 45 A.3d 348, 356 (2012); White v. United States, 863 A.2d 839, 842 (D.C.2004). See generally Thomas P. Reilly, Note, Now I’m Guilty, Now I’m Not: The Automatic Right to Pre-Sentence Guilty Plea Withdrawals in Pennsylvania Since Commonwealth v. Forbes, 59 Vill. L. Rev. 305, 320-30 & nn. 85-138 (2014) (collecting cases) (offering a comparison between Pennsylvania cases governing presentence plea withdrawal with those of other jurisdictions).

      . In any event, Appellee cites the Superior Court's Tennison decision as creating an exception that allows an innocence assertion to be discredited, but only where the record plainly demonstrates an ulterior motive (and not where such motive must be inferred). See Brief for Appellee at 22 (citing Tennison, 969 A.2d at 578).

      . A guilty plea implicates the waiver of important constitutional rights attending a defendant's trial rights. See, e.g., Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468-69, 25 L.Ed.2d 747 (1970) (explaining that a "plea is more than an admission of past conduct; it is the defendant’s consent that judgment of conviction may be entered without a trial — a waiver of his right to trial before a jury or a judge"); Commonwealth v. Culbreath, 439 Pa. 21, 26, 264 A.2d 643, 645 (1970) (observing that, by pleading guilty, a defendant waives non-jurisdictional defects and defenses).

      . In light of our disposition, above, we do not reach the second issue presented on appeal, which concerns prejudice to the Commonwealth. See Carrasquillo, 624 Pa. at 503, 86 A.3d at 830.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    116 A.3d 601
    COMMONWEALTH of Pennsylvania, Petitioner v. Joseph Walter DERHAMMER, Respondent.
    Supreme Court of Pennsylvania.
    May 26, 2015.
   ORDER

PER CURIAM.

AND NOW, this 26th day of May, 2015, the Petition for Allowance of Appeal is GRANTED. The issue, as framed by Petitioner, is as follows:

Did the Superior Court err in affirming the trial judge’s decision precluding the Commonwealth from referencing [Respondent’s] pre-arrest failure to inquire as to the welfare of the victims, specifically the [Respondent’s] spontaneous, self-initiated contact with police, that was not in response to any police questioning, after he arrived at the arson scene of his own volition?


text:
    116 A.3d 1103
    Edward GRAZIANO, Appellant v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, John Wetzel, Nancy Giroux, Cheryl Gill, et al., Appellees.
    Supreme Court of Pennsylvania.
    June 15, 2015.
    Edward Graziano, Pro Se.
    Suzanne Noelle Hueston, Julie Renee Tilghman, Mechanics-burg, PA, for Department of Corrections, Cheryl Gill, Nancy Giroux, and John Wetzel.
   ORDER

PER CURIAM.

AND NOW, this 15th day of June, 2015, the direct appeal is QUASHED. Appellant’s Application to Correct the Factual Record (Pa.R.A.P. 2501(a)) is DISMISSED AS MOOT.


text:
    116 A.3d 1103
    Dennis MADDREY, Appellant, v. Dandra GORNIAK, Sci-Albion Inmate Accountant and Philadelphia County Clerk of Courts, Appellees.
    Supreme Court of Pennsylvania.
    June 15, 2015.

      Dennis Madrey, Pro Se.
    Martha Gale, Administrative Office of Pennsylvania Courts, for Philadelphia County Clerk of Courts.
    Suzanne Noelle Hueston, Pennsylvania Department of Corrections, Chase M. Defelice, PA Office of General Counsel, for Dandra Gorniak.
   ORDER

PER CURIAM.

AND NOW, this 15th day of June, 2015, the order of the Commonwealth Court is hereby AFFIRMED.


author:
Chief Justice SAYLOR.
     Justice STEVENS.

text:
    116 A.3d 1103
    COMMONWEALTH of Pennsylvania, Appellant v. James John HVIZDA, Appellee.
    Supreme Court of Pennsylvania.
    Argued Sept. 10, 2014.
    Decided June 15, 2015.

      Nicholas J. Casenta, Jr., Esq., Thomas P. Hogan, Jr., Esq., Chester County District Attorney’s Office, for Commonwealth of Pennsylvania.
    John R. Merrick, Esq., Nathan Mayer Schenker, Esq., Chester County Public Defender’s Office, for James John Hvizda.
    CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
   OPINION

Chief Justice SAYLOR.

The issue presented concerns whether a common pleas court was required to permit withdrawal of a guilty plea, upon the defendant-appellee’s assertion of innocence. The appeal is a companion case with Commonwealth v. Carrasquillo, 631 Pa. 692, 115 A.3d 1284 (2015).

Appellee stabbed his estranged wife, Kimberly, to death. He immediately surrendered to police and confessed. Subsequently, he pled guilty to first-degree murder and possession of an instrument of crime. In exchange for the plea, the Commonwealth was to recommend that Appellee would receive the mandatory sentence of life imprisonment for first-degree murder and a consecutive term of incarceration pertaining to the possessory offense.

Just over two months later, when Appellee appeared for sentencing, he advised the common pleas court that he wished to withdraw his plea, stating: “I’m here to maintain my innocence in the charge of murder in the first degree.” N.T., July 9, 2012, at 8. His counsel explained:

There needs to be a fair and just reason [in support of a motion to withdraw a plea]. As stated previously in response to Your Honor’s inquiry, his fair and just reason is that he maintains his innocence on the charge of first degree murder and possessing an instrument of crime.

Id. at 6. The court listed the matter for hearing.

At the hearing, Appellee again stated that he was innocent, but he offered no evidence. The Commonwealth presented audiotapes of Appellee’s telephone conversations from prison, in which he stated that, although he “did it” and knew that he “deserve[d] what [he was] gonna get,” he wished to stand trial to “get some of the story out.” N.T., Aug. 20, 2012, at 10-11. On this basis, and more generally, the Commonwealth took the position that Appellee’s assertion of innocence was implausible and insincere.

The common pleas court denied Appellee’s motion, applying the standard derived from Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), which requires a court to accept a presentence withdrawal of a plea upon presentation of a fair- and-just reason, and in the absence of substantial prejudice to the Commonwealth. See id. at 191, 299 A.2d at 271. The court relied on Commonwealth v. Tennison, 969 A.2d 572 (Pa.Super.2009), for the proposition that it had the ability to adjudge the sincerity of the innocence claim in the assessment of fairness and justice. See Commonwealth v. Hvizda, No. 1350-2012, slip op. at 2-3 (C.P. Chester Aug. 22, 2012) (citing Tennison, 969 A.2d at 573). According to the common pleas court, the Commonwealth had “presented compelling and unique evidence to establish [Appellee’s] bald assertion of innocence was at best pretextual and an attempt to manipulate the system.” Id. at 3.

After sentencing ensued in accordance with the plea agreement, Appellee lodged an appeal. In its brief, the Commonwealth argued for the first time that the Forbes standard did not govern Appellee’s motion. Rather, the Commonwealth observed, in Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1983), this Court had substituted a requirement that a defendant subject to a mandatory life sentence should establish a manifest injustice to support presentence plea withdrawal. See id. at 517, 467 A.2d at 310.

In a divided, memorandum decision, the Superior Court vacated the common pleas court’s ruling and instructed that court to accept the plea withdrawal. The majority related that, in the en bane decision in Commonwealth v. Katonka, 33 A.3d 44 (Pa.Super.2011), the intermediate court had explained that Tennison was limited to its facts and that credibility assessments relative to a defendant’s claim of innocence were impermissible. See id. at 49-50. Accordingly, the majority determined that the common pleas court should have accepted Appellee’s assertion of innocence as a fair-and-just reason in support of withdrawal.

The majority also declined the Commonwealth’s invitation to apply Lesko. In this regard, it distinguished the case on several grounds, including because Appellee was not only required to receive a life sentence for first-degree murder but was also subject to a term of incarceration for his possessory offense, and since Appellee was subject to fines, costs, and restitutions in the discretion of the sentencing court.

Then-President Judge Stevens dissented, essentially on the basis of the common pleas court’s reasoning.

The Commonwealth lodged a petition for allowance of appeal, which we accepted to exercise plenary review over the legal issues presented.

The Commonwealth first argues that Lesko is controlling and required the Superior Court to apply a manifest injustice standard. In the alternative, the Commonwealth contends that Katonka’s proscription against credibility assessments relative to innocence claims does not fairly derive from the decisions of this Court.

Appellee finds Lesko to be outdated, poorly reasoned, difficult to apply, and factually distinguishable. In terms of the appropriate application of the Forbes standard, Appellee maintains, consistent with Superior Court precedent, that his bare assertion of innocence is enough to establish a fair-and-just reason supporting presentence withdrawal of a plea.

Initially, we agree with Appellee that the Lesko decision is incompletely reasoned on the relevant point and should not remain controlling authority. In Lesko, this Court recognized the prevailing liberal standard for presentence withdrawal as established in Forbes. See Lesko, 502 Pa. at 517, 467 A.2d at 310. The Court observed, however, that the standard for post-sentence withdrawal is a stringent one, requiring the defendant to establish manifest injustice. The remainder of the Lesko Court’s reasoning is as follows:

The basis for the difference between these two standards is clear. Allowing an accused to withdraw his guilty plea after imposition of sentence requires a stricter standard to prevent defendants from using a guilty plea as a tool for previewing the sentencing by the court. Such a misuse does not occur when withdrawing a guilty plea prior to sentencing.
The lower court applied the “manifest injustice” standard, reasoning that the [a]ppellant was pre-advised of the only possible sentence. Therefore, the [a]ppellant’s petition was akin to a post-sentencing petition. Because the [a]ppellant was well aware of the only possible sentence imposable for the crime to which he pled guilty, we find no error in applying the “manifest injustice” standard. In any event, applying the “fair and just reason” standard will not give the Appellant the requested relief.

Id. (emphasis in original).

Unfortunately, the Lesko Court did not discuss all of the policies underlying the Forbes rule. Indeed, the main reason the Court has repeatedly invoked in support of the liberal allowance of presentence withdrawal of pleas is to safeguard defendants’ trial rights. See, e.g., Commonwealth v. Santos, 450 Pa. 492, 494-95, 301 A.2d 829, 830 (1973) (“[S]ince guilty pleas involve the simultaneous waiver of so many constitutional rights, we have recently emphasized ‘that a request [to withdraw] made before sentencing ... should be liberally allowed.’ ” (quoting Forbes, 450 Pa. at 190, 299 A.2d at 271 (emphasis added; footnote omitted))). Moreover, Lesko’s rationale centered on “sentence-previewing” is strained. While Lesko correctly recognized that a defendant pleading guilty to an offense triggering a mandatory life sentence has no need to preview the sentencing result (as he already knows that he will receive a life sentence at the time the plea is accepted), Lesko used this premise to reach the opposite conclusion of that to which it logically leads. Contrary to the Lesko Court’s reasoning, if preventing previewing were the only reason supporting implementation of an elevated standard, there would be no reason to apply the higher standard at all to a defendant who has pled guilty to an offense triggering a mandatory life sentence. Lesko, however, upended this logic to conclude that the liberal standard should not apply in the first instance, again, without any acknowledgement of the driving justification for liberality in the presentence period, i.e., safeguarding defendants’ trial rights.

We also agree with Appellee that the Lesko approach is problematic in its application, as it yields distinctions and variations such as are reflected in the opinion of the Superior Court majority here. Accordingly, while we recognize the importance of adhering to precedent, we disapprove Lesko’s idiosyncratic approach to presentence withdrawal. See generally Ayala v. Phila. Bd. of Pub. Ed., 453 Pa. 584, 606, 305 A.2d 877, 888 (1973) (“[T]he doctrine of stare decisis is not a vehicle for perpetuating error, but rather a legal concept which responds to the demands of justice and, thus, permits the orderly growth processes of the law to flourish

In the companion case of Carrasquillo, however, we have determined that a bare assertion of innocence—such as Appel-lee 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, 631 Pa. at 694, 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 Appellee’s withdrawal motion.

The order of the Superior Court is reversed, and the matter is remanded for reinstatement of the judgment of sentence.

Former Chief Justice CASTILLE and former Justice McCAFFERY did not participate in the decision of this case.

Justices EAKIN, BAER, TODD and STEVENS join the opinion.

Justice STEVENS flies a concurring opinion.

CONCURRING OPINION

Justice STEVENS.

I join the majority.

Similar to the companion case of Commonwealth v. Carrasquillo, 631 Pa. 692, 115 A.3d 1284 (2015), I write separately to emphasize my disapproval with the Superior Court’s bright-line rule that prohibited, as a matter of law, trial courts from assessing the credibility of an “assertion of innocence” made in the context of a presentence motion to withdraw a guilty plea. This per se approach, which was based upon the utterance of “magic words,” undermined the trial court’s role as a finder of fact and removed necessary discretion from the court. I agree with the majority that such an approach was unsatisfactory. 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.

      . This matter was reassigned to this author.

      . Of course, there are other justifications for the elevated standard governing post-sentence withdrawal motions, also not recognized in Lesko. See, e.g., Commonwealth v. Gunter, 565 Pa. 79, 84, 771 A.2d 767, 771 (2001) ("The different treatment of pre- and postsentence motions reflects the tension in our jurisprudence between the individual’s fundamental right to a trial and the need for finality in the proceedings.”).


author: Justice BAER.

text:
    117 A.3d 232
    SCHOOL DISTRICT OF PHILADELPHIA v. WORKERS’ COMPENSATION APPEAL BOARD (HILTON). Appeal of Shirley Hilton.
    Supreme Court of Pennsylvania.
    Argued March 10, 2015.
    Decided May 26, 2015.

      Paul M. Della Franco, Esq., Philadelphia, for Shirley Hilton.
    George E. Martin, III, Esq., Martin, LLC, for Pennsylvania Association for Justice, Amicus Curiae.
    Amber Marie Kenger, Esq., PA Department of Labor & Industry, for Workers’ Compensation Appeal Board.
    William E. Malone Jr., Esq., Media, Musi, Malone & Daubenberger, L.L.P., for School District of Philadelphia.
    SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
   OPINION

Justice BAER.

The primary issue in this appeal is whether Section 306(b)(3) of the Workers’ Compensation Act (Act) requires an employer to provide an injured employee with written “notice of ability to return to work” before offering alternative employment where the injured employee has not yet filed a claim petition and, thus, has never proven entitlement to workers’ compensation benefits. We hold that Section 306(b)(3) notice is required where the employer is seeking to modify existing workers’ compensation benefits based on medical evidence establishing that the injured employee is able to return to work in some capacity. Because the injured employee in the case before us had not yet received workers’ compensation benefits when the offer of alternative employment was rendered, the employer had no duty to provide notice of ability to work pursuant to Section 306(b)(3). Accordingly, we affirm the order of the Commonwealth Court.

The record establishes that Shirley Hilton (Claimant) was employed by the School District of Philadelphia (Employer) as a second grade teacher at the Frances D. Pastorius Elementary School (Pastorius Elementary) from November 24, 2008 to March 3, 2009. The second graders in Claimant’s classroom engaged in significant misbehavior, including using profanity and engaging in physical violence, which prevented Claimant from teaching effectively and required her to speak louder than the classroom noise. After completing an assignment on March 3, 2009, the children became unruly and vandalized the room by knocking over desks and chairs, tearing down educational charts, and later ripping down a window shade. Claimant thereafter felt dizzy, could not eat, and suffered from tension headaches, heart palpitations, and nausea.

After school that day, Claimant went to a regularly scheduled appointment with her primary care physician, Dr. Wilfre-ta Baugh. Claimant informed Dr. Baugh of her symptoms and indicated that the anxiety arising from her employment was more than she could bear. As a result, a representative from Dr. Baugh’s office called Employer and advised that Claimant would not be returning to work due to the school’s overly stressful environment.

Shortly after the incident, Claimant was treated by Employer’s work physician, Dr. Frank Burke, who concluded that she could return to work at her regular duty job at Pastorius Elementary. Claimant returned to Pastorius Elementary a few weeks later, but stayed only four days, unable to continue working under the stress. Notably, on May 29, 2009, Employer issued a notice of compensation denial, rejecting Claimant’s contention that she suffered a work-related injury due to excessive stress on the job.

In June of 2009, Employer assigned Claimant to teach in the fall at a different school, the Jay Cooke School. Claimant met with the principal of that school and toured the facility, finding it to be the opposite of Pastorius Elementary in that it was very quiet and the instructors were able to teach the children effectively. Germane to the issue before us, at the time Employer offered Claimant the alternative employment at the Jay Cooke School, she had not yet filed a claim petition; thus, no depositions of medical experts had been taken by either party. When school began in September of 2009, Claimant did not begin employment at the Jay Cooke School. Claimant maintained that she was unable to return to teaching because she was still under treatment for the job-related maladies that arose from her stressful working environment at Pastorius Elementary.

In October of 2009, Claimant filed a claim petition alleging that, due to stress from an abnormal working environment, she sustained work-related injuries on March 3, 2009, which included a vocal cord injury, aggravation of pre-existing lupus, and a heart murmur. She asserted that these injuries rendered her totally disabled. Consistent with its prior notice of compensation denial, Employer filed a timely answer denying all of the material averments in Claimant’s petition. Deposition testimony was provided by Claimant, her treating physician, Dr. Baugh, and Employer’s medical expert, Dr. James A. Lamprakos.

In a deposition dated December 4, 2009, Claimant, who was seventy years of age at the time, testified regarding the stressful conditions at Pastorius Elementary as outlined supra. She explained the effects she suffered from the school’s environment, including dizziness, heart palpitations, headaches, nausea, and the reemergence of her preexisting condition of lupus. Claimant acknowledged that Employer assigned her to the Jay Cooke School in June of 2009, and that she visited the facility, finding it to be a quiet school with excellent teaching. She reiterated, however, that she was not able to return to teaching in the fall of 2009 because she was still being treated for the stress-related injuries incurred from teaching at Pastorius Elementary.

Dr. Baugh, Claimant’s treating physician, testified by deposition dated March 9, 2010, and indicated that Claimant was in good health prior to the work-related incident. She noted that Claimant had previously been diagnosed with lupus, but had been in remission for the past three years. While Claimant also had a previous history of fibromyalgia and a vocal cord injury, she had no symptoms from such conditions at the time she began teaching for Employer. Dr. Baugh’s medical opinion, within a reasonable degree of medical certainty, was that the stressful work environment at Pastorius Elementary exacerbated Claimant’s preexisting conditions of lupus and fibro-myalgia, and caused her to suffer from muscle spasms, headaches, insomnia, and vocal cord injury. Deposition of Dr. Baugh, Mar. 9, 2010, at 17-19. Dr. Baugh was sure, however, that Claimant was capable of teaching in a less stressful environment and that she desired to do so, as opposed to teaching under the circumstances that had been present at Pastorius Elementary. Id. at 19, 21-22, 34.

Employer’s expert witness, Dr. James A. Lamprakos, testified by deposition dated August 4, 2010. Based on his physical exam and review of Claimant’s medical records, he opined that Claimant was able to work without restriction in her pre-injury job as a second grade school teacher. Deposition of Dr. Lamprakos, Aug. 4, 2010, at 53. Contrary to Dr. Baugh’s conclusions, Dr. Lamprakos concluded there was no medical evidence establishing that Claimant’s stressful work environment caused the worsening of her preexisting conditions of fibromyalgia, lupus, and vocal cord injury. Id. at 35-36, 40, 44-45, 48. Acknowledging that Claimant’s oral ulcers, nasal ulcers, and the increased hyperpigmentation on her face were indicative of lupus, Dr. Lamprakos found no evidence linking the reemergence of lupus to stress, although he conceded it was possible. Id. at 78.

The WCJ credited Claimant’s testimony regarding the conditions of her work environment at Pastorius Elementary, emphasizing that the behavioral problems of the second grade class were uncontroverted. The WCJ also credited Claimant’s testimony that the stressful work environment caused her symptoms of heart palpitations, headaches, dizziness, and nausea and reduced her voice to a whisper. Finding portions of Dr. Baugh’s testimony credible, the WCJ concluded that Claimant suffered an injury in the nature of muscle tension dysphonia from voice overuse. The WCJ further credited Dr. Baugh’s opinion that as a result of the stressful work environment, Claimant sustained an exacerbation of her preexisting lupus, as demonstrated by her oral ulcers, nasal ulcers, and increased hyperpigmentation of the face. Nevertheless, the WCJ credited Employer’s expert, Dr. Lamprakos, and concluded that the stressful work conditions did not cause an exacerbation of Claimant’s fibromyalgia.

Accordingly, based on Dr. Baugh’s testimony, the WCJ concluded that the stress arising from teaching at Pastorius Elementary resulted in the physical injury of exacerbated lupus with its associated symptomology and vocal cord injury in the nature of muscle tension dysphonia from voice overuse, which rendered Claimant totally disabled as of March 3, 2009. Thus, the WCJ awarded her benefits as of that date. Significantly, however, the WCJ found that Dr. Baugh’s testimony did not establish that Claimant was generally disabled from working as a teacher, but only that she was disabled from working in a classroom with children who have behavioral problems like those in her class at Pastorius Elementary. WCJ’s Opinion, Apr. 19, 2011, Finding of Fact No. 41. Crediting Claimant’s own testimony that on September 30, 2009, Employer made a position available to her at the Jay Cooke School, which Claimant found to be a quiet school with excellent teaching, the WCJ held that Claimant’s worker’s compensation benefits should be suspended as of that time.

The Workers’ Compensation Appeal Board (WCAB) affirmed in part and reversed in part. Initially, it affirmed the grant of benefits, thereby rejecting Employer’s contention that Dr. Baugh’s testimony that Claimant’s work duties exacerbated her pre-existing lupus was incompetent because she was not an expert in the area. The WCAB opined that a physician need not be an expert in a specialized area in order to render competent testimony on the subject.

Relevant here, the WCAB reversed that portion of the WCJ’s order suspending Claimant’s benefits as of September 30, 2009, on the ground that Employer never provided her with a notice of ability to return to work pursuant to Section 306(b)(3) of the Act. This provision states:

If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following:
(i) The nature of the employe’s physical condition or change of condition.
(ii) That the employe has an obligation to look for available employment.
(iii) That proof of available employment opportunities may jeopardize the employe’s right to receipt of ongoing benefits.
(iv) That the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer’s contentions.

77 P.S. § 512(3).

Relying on Allegis Group v. Workers’ Comp. Appeal Bd. (Henry), 882 A.2d 1 (Pa.Cmwlth.2005), and Hoover v. Workers’ Comp. Appeal Bd. (Harris Masonry, Inc.), 783 A.2d 886 (Pa.Cmwlth.2001), the WCAB held that an employer’s obligation to issue Section 306(b)(3) notice was mandatory and that an employer’s failure to comply with the provision during the litigation of a claim petition precluded the suspension of benefits. The WCAB concluded that because there was no evidence that Employer provided Claimant with Section 306(b)(3) notice of ability to return to work, the Employer did not meet the threshold burden required to modify benefits. Alternatively, the WCAB held that the suspension of Claimant’s benefits was improper because there was no evidence presented that Claimant had ever been released by Dr. Baugh to return to work as a teacher at the Jay Cooke School in September of 2009.

The Commonwealth Court affirmed in part and reversed in part. Sch. Dist. of Phila. v. Workers’ Comp. Appeal Bd. (Hilton), 84 A.3d 372 (Pa.Cmwlth.2014). The court affirmed the WCAB’s affirmance of the grant of workers’ compensation benefits, agreeing with the WCAB that Dr. Baugh, as Claimant’s treating physician, was competent to testify that the stressful working conditions exacerbated Claimant’s preexisting lupus. Id. at 375. The court, however, reversed the WCAB’s ruling that the WCJ erred in suspending benefits as of September 30, 2009. The Commonwealth Court held that the WCJ properly suspended Claimant’s benefits because: (1) Claimant established disability only until September 30, 2009, when the job at Jay Cooke Elementary was available; and (2) Employer had no duty to issue a Section 306(b)(3) notice to Claimant under the facts presented.

Regarding the first basis for the suspension of benefits, the Commonwealth Court relied on Dr. Baugh’s testimony that Claimant was not disabled from working as a teacher generally, but rather was only disabled from teaching at a school like Pastorius Elementary where the children had severe behavioral problems. Id. at 376. Accordingly, it concluded that Claimant established disability only until September 30, 2009, when the job at the Jay Cooke School became available.

Additionally, the Commonwealth Court held that Employer had no duty to issue Claimant a notice of ability to return to work. Relying on Struthers Wells v. Workers’ Comp. Appeal Bd. (Skinner), 990 A.2d 176, 178 (Pa.Cmwlth.2010), the court held that Section 306(b)(3) notice is part of the earning power assessment process and is required where an employer seeks to alter a claimant’s status quo of existing benefits to partial disability by modification or suspension of payments on the basis of medical evidence. It explained that the purpose of the notice provision is to require employers to share new medical information about a claimant’s physical ability to work and its possible impact on existing benefits. Hilton, at 377 (citing Burrell v. Workers’ Comp. Appeal Bd. (Phila. Gas Works), 849 A.2d 1282, 1286 (Pa.Cmwlth.2004)). The Commonwealth Court referenced unreported decisions, in which it recognized that Section 306(b)(3) presumes that the injury has caused a disability, that a claim has been acknowledged as compensable, and that the employer is seeking to reduce its existing liability. Hilton, at 377 (citing Zyskowski v. Workers’ Comp. Appeal Bd. (Allied Services), 2013 WL 3960967 (Pa. Cmwlth., No. 1665 C.D. 2012, filed February 26, 2013), Slip Op. at 14 [quoting King v. Workers’ Comp. Appeal Bd. (Monroe Muffler & Brakes), 2010 WL 9513077 (Pa.Cmwlth., No. 1582 C.D. 2009, filed June 29, 2010), Slip Op. at 10.]).

The Commonwealth Court emphasized that none of these prerequisites for issuance of Section 306(b)(3) notice were present here because Claimant had not been receiving benefits at the time of Employer’s job offer, no litigation was pending as Claimant had not yet filed a claim petition, and Employer’s job offer was not based on a change in Claimant’s medical condition. Hilton, at 377. It emphasized that “[h]ere, in the claim petition, the burden was on Claimant to show the duration of her disability, and she simply did not establish that it continued beyond September 30th.” Id. at 378. Accordingly, the court concluded that the requirement for issuing Section 306(b)(3) notice was not triggered.

This Court granted Claimant’s petition for allowance of appeal on two distinct, but related issues. First, Claimant submits that in order to suspend disability benefits based upon an offer of alternative employment, the employer must provide the claimant with a notice of ability to return to work, regardless of whether the claimant sought or was receiving benefits at the time the job offer was made. She argues that the clear language of Section 306(b)(3) creates a mandatory notice requirement to the injured worker and includes no language limiting such notice to those claimants currently receiving benefits. Claimant maintains that the Commonwealth Court’s attempt to carve out an exception to the mandatory requirement of filing a notice of ability to return to work contravenes both the letter and intent of Section 306(b)(3) and the Act as a whole.

In support of her position, Claimant contends that the Commonwealth Court’s holding—that Section 306(b)(3) notice is unnecessary where the claimant is not receiving workers’ compensation benefits—conflicts with that court’s decisions in Allegis Group, and Hoover, supra, upon which the WCAB relied in reversing the suspension of benefits. According to Claimant, the Commonwealth Court in those cases determined that in the context of a claim petition proceeding where the claimant was not yet receiving benefits, the employer must establish that it issued a Section 306(b)(3) notice prior to tendering an offer of alternative employment. She maintains that the Hoover decision clarifies that employers must satisfy the requirements of Section 306(b)(3) where the employer is attempting to limit the duration and extent of the award of disability benefits based upon an actual job offer in a claim petition setting.

Claimant further contends the Commonwealth Court erred by relying upon Burrell, supra, for the proposition that Section 306(b)(3) notice is not required under the circumstances presented. Burrell is distinguishable, she asserts, because the employer in that case demonstrated through surveillance video evidence that the claimant had actually returned to work, thus, there was no need to inform him that he was capable of returning to work pursuant to Section 306(b)(3).

According to Claimant, the Commonwealth Court’s holding relieves an employer of its statutory obligation to provide notice of a claimant’s ability to work. Claimant views such result as inequitable and illogical in that it rewards the employer who erroneously denied the disability claim and penalizes the disabled worker who was forced to initiate the claim petition proceeding to recover benefits to which she was clearly entitled.

In her second issue, which is related but distinct, Claimant contends that the suspension of her benefits as of September 30, 2009, was unwarranted absent medical evidence establishing a change in her disability status. She submits that it is well-settled that where an injured employee meets her burden of proving an entitlement to disability benefits in a claim petition proceeding, the burden shifts to the employer to prove entitlement to a suspension of those benefits through competent evidence. See Vista Int’l Hotel v. Workmen’s Comp. Appeal Bd. (Daniels), 560 Pa. 12, 742 A.2d 649, 654 (1999) (holding that in a claim petition proceeding, the claimant bears the burden of establishing a work-related injury rendering him incapable of performing the time-of-injury job, and if the employer maintains that the claimant can perform some work within restrictions, it bears the burden of proving that suitable employment is available).

Here, Claimant argues, there was no medical evidence establishing that she was physically capable or medically cleared to perform a modified position at the Jay Cooke School as of the date that the position was made available to her, i.e., September 30, 2009. This conclusion is not altered by her own medical expert’s testimony that she could return to teaching in a less stressful environment, she contends, because Dr. Baugh’s deposition in that regard was not given until March 9, 2010, six months after the job at the Jay Cooke School was made available to her. Thus, Claimant concludes, the lack of competent medical evidence establishing that she had the ability to return to work on September 30, 2009, serves as an independent ground upon which to reverse the suspension of her workers’ compensation benefits.

In response, Employer contends that the Commonwealth Court interpreted Section 306(b)(3) correctly when it concluded that an employer has no obligation to provide a claimant with a notice of ability to work when the claimant was not receiving existing workers’ compensation benefits at the time the job offer/reassignment was made. This holding is consistent with the purpose of Section 306(b)(3), it argues, which is “to require the employer to share new medical information about a claimant’s physical capacity to work and its possible impact on existing benefits.” Struthers Wells, 990 A.2d at 178 (citing Burrell, 849 A.2d at 1287). As noted in the Commonwealth Court’s decision below, Employer emphasizes that unreported decisions of that court have consistently expressed the view that “Section 306(b)(3) of the Act presumes that the injury has caused a disability, a claim has been acknowledged as compensable and that the employer seeks to reduce its existing liability by decreasing the amount of benefits it has to pay.” Hilton, at 377 (case citations omitted).

According to Employer, the instant facts illustrate that the only logical interpretation of Section 306(b)(3) is to require a notice of ability to work when a claimant is already receiving workers’ compensation benefits at the time the job offer is made. Here, when Employer offered Claimant the teaching position at the Jay Cooke School, it had issued a notice of compensation denial, thereby disputing that Claimant was disabled by a work-related injury, and Claimant had not yet filed a claim petition or received any benefits. Because litigation had not yet commenced, Employer argues there was no new medical evidence that it could have provided to Claimant pursuant to Section 306(b)(3). As such, Employer submits, it had no obligation under the Act to establish a change in Claimant’s medical condition when such medical condition had yet to be established. Further, Employer maintains that Claimant was not prejudiced by the lack of Section 306(b)(3) notice because she was aware that refusal of the job offer (before her claim petition was filed and before receiving benefits) would affect her income.

Employer proffers that these particular facts, i.e. that Claimant had not yet filed a claim petition and was not receiving benefits at the time the alternative job was made available, distinguish this case from those cases relied upon by Claimant, where a Section 306(b)(3) notice was held to be required. It refutes Claimant’s characterization of the Commonwealth Court’s decisions in Allegis Group and Hoover as standing for the proposition that Section 306(b)(3) notice is required in the “claim petition setting.” Employer points out that, unlike the instant case, the employer in Allegis Group had filed a notice of compensation payable relating to the alleged work injury, thereby accepting liability for the injury and triggering the requirements set forth in Section 306(b)(3) to notify the claimant, who was receiving benefits, that he or she is physically capable of returning to work. As noted, at the time alternative employment was offered in the instant case, Employer had filed a notice of compensation denial and Claimant’s disability had yet to be determined. Employer submits that Hoover is likewise distinguishable because the Commonwealth Court determined that the employer had a duty to issue a notice of ability to return to work when a job was offered to the claimant during the litigation of a claim petition. Employer points out that, unlike Hoover, Claimant’s job offer to teach at the Jay Cooke School was made four months before she filed her claim petition.

Regarding the second issue on appeal, Employer discounts Claimant’s argument that suspension of benefits was improper because there was no medical evidence demonstrating a change in Claimant’s disability status. Employer does not dispute the general burden-shifting paradigm upon which Claimant relies. It agrees that a loss of earnings is established once it is determined that a work-related injury prevents a claimant from returning to the time-of-injury job, and that the burden then shifts to the employer to modify the benefits by demonstrating that employment is available within the claimant’s restrictions. Here, however, Employer maintains that Claimant failed to demonstrate a continuing loss of earning power that would entitle her to ongoing benefits. Employer emphasizes that Dr. Baugh, Claimant’s medical expert, did not testify that Claimant was disabled from teaching generally, but rather only that she was unable to teach in a school where the children had severe behavioral problems. Because Claimant herself testified that the Jay Cooke School did not have such problems, Employer contends that Claimant only established disability until September 80, 2009, when the alternative teaching job became available, and the burden of proof never shifted to Employer. This case involves nothing more, it asserts, than the award of benefits for a closed period due to Claimant’s inability to demonstrate a loss of earning power after the job at the Jay Cooke School became available.

In this regard,. Employer maintains that it is well-established that the claimant bears the burden to prove the extent of his or her disability. See Connor v. Workmen’s Comp. Appeal Bd. (Super Sucker, Inc.), 155 Pa.Cmwlth. 102, 624 A.2d 757, 758 (1993) (rejecting the contention that benefits could not be terminated absent a request by employer because such argument ignored that in a claim proceeding it is the claimant’s burden to prove the extent of his disability and the referee is free to grant benefits for a closed period if the evidence supports such finding); see also Rife v. Workers’ Compensation Appeal Board (Whitetail Ski Company), 812 A.2d 750, 754-55 (Pa.Cmwlth.2002) (holding that “[t]he claimant also has the burden of proof in establishing the duration of disability throughout the pendency of the claim petition”). Having failed to present any medical evidence establishing that her loss of earnings continued after September 30, 2009, Employer contends that Claimant cannot now prevail by attempting to shift that burden to Employer.

The issues on appeal involve the statutory construction of the Workers’ Compensation Act and thereby constitute questions of law over which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Zortman, 611 Pa. 22, 23 A.3d 519, 522-23 (2011). We further note that a court’s standard of review of an agency decision is limited to determining whether there has been a constitutional violation, an error of law, or a violation of agency procedure, and whether necessary findings of fact are supported by substantial evidence. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 623 Pa. 25, 81 A.3d 830, 838 (2013); 2 Pa.C.S. § 704. Additionally, we keep in mind that the Workers’ Compensation Act is remedial in nature and intended to benefit the worker, and, thus, should be construed liberally to effectuate its humanitarian objectives. Phoenixville Hosp., at 838.

We first examine Section 306(b)(3) to determine whether Employer was required to provide Claimant with a notice of ability to work prior to offering her alternative employment at the Jay Cooke School when Claimant was not receiving workers’ compensation benefits at the time the job was offered.

Preliminarily, we note that Section 306(b)(3) was enacted by the Legislature in 1996 as part of the Act of June 24, 1996, P.L. 350, generally referred to as “Act 57,” which was intended to alter an employer’s evidentiary burden in cases involving the modification of disability benefits where the claimant was capable of returning to gainful employment in some capacity. Phoenixville Hosp., at 845. Act 57 substantially amended Section 306(b)(1) of the Act and added Section 306(b)(2) and (3) to introduce an earning power assessment process in an attempt to streamline the previous requirements an employer had to satisfy to modify existing benefits. See West’s Pa. Practice, Workers’ Compensation, § 21.5 (3d ed.2014) (explaining that Act 57 was prompted by a desire to replace the Kachinski regime with a more efficient form of partial disability determination, including the utilization of the “notice of ability to return to work” form as a means of disclosing to the injured worker that he had been declared medically capable of returning to the work force).

With this background in mind, we examine the language of Section 306(b)(3) “to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). The best indication of legislative intent is the statute’s plain language. Malt Beverages Distributors Association v. Penn sylvania Liquor Control Board, 601 Pa. 449, 974 A.2d 1144, 1149 (2009). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). Further, we construe every statute “if possible, to give effect to all its provisions.” Id. § 1921(a); see also 1 Pa.C.S. § 1922(2) (“the General Assembly intends the entire statute to be effective and certain”). Finally, the General Assembly does not intend a result that is absurd, impossible of execution, or unreasonable. Id. § 1922(1).

As noted, Section 306(b)(3) states:

If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following:
(i) The nature of the employe’s physical condition or change of condition.
(ii) That the employe has an obligation to look for available employment.
(iii) That proof of available employment opportunities may jeopardize the employe’s right to receipt of ongoing benefits.
(iv) That the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer’s contentions.

77 P.S. § 512(3).

The primary argument proffered by Claimant is that because the Section 306(b)(3) notice requirement is not limited expressly to those claimants who are receiving workers’ compensation benefits, an employer must provide such notice to all claimants prior to offering alternative employment, even those who are not receiving workers’ compensation benefits or, indeed, have not yet filed a claim petition. Employer refutes this contention by responding that express language limiting the requisite notice to claimants who are receiving benefits is unnecessary because the statutory language only makes logical sense if applied where it has been determined that there is a compensable injury and the employer is seeking suspension of existing benefits based on medical evidence declaring the claimant capable of returning to work in some capacity. We agree with Employer.

The plain language of Section 306(b)(3) reveals that the focus of the provision is upon the employer’s receipt of medical evidence of a change in the nature of the claimant’s physical condition and the employer’s duty to apprise the claimant of such evidence. See 77 P.S. § 512(3)(i) (stating “[i]f the insurer receives medical evidence that the claimant is able to return to work ..., then the insurer must provide prompt written notice ... to the claimant, which states ... the nature of the employe’s physical condition or change of condition ... ”). The remaining language of Section 306(b)(3) explains that such notice must alert the claimant of the “obligation to look for available employment,” which “may jeopardize the employe’s right to receipt of ongoing benefits,” and to inform that “the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer’s contentions.” Id. § 512(3)(ii), (iii), (iv).

This language supports the Commonwealth Court’s determination that Section 306(b)(3) presumes that the work-related injury has caused a disability, that the claimant is receiving ongoing benefits for that compensable injury, and that the employer seeks to utilize the medical evidence it obtained in an attempt to reduce its existing liability by decreasing the amount of benefits it has to pay. See Struthers Wells, 990 A.2d at 178 (2010) (holding that the clear purpose of Section 306(b)(3) is to require the employer to share new medical information about a claimant’s physical capacity to work and its possible impact on existing benefits); Burrell, 849 A.2d at 1287 (same).

As noted cogently by Employer, the facts of this case illustrate that it would be illogical to require an employer to issue a Section 306(b)(3) notice before an employer has conceded the occurrence of a compensable injury or a claimant has proven entitlement to benefits. Here, at the time Employer offered Claimant an alternative position at the Jay Cooke School, Employer had filed a notice of compensation denial and Claimant had not commenced litigation. We agree with Employer that it does not have an obligation to disclose evidence of a change in Claimant’s physical condition at a time when her physical condition had yet to be determined. Similarly, Claimant’s argument ignores that Section 306(b)(3) is based upon an employer’s receipt of medical evidence, and fails to identify what, if any, medical evidence existed that Employer failed to disclose. To require Section 306(b)(3) notice under the facts presented would place an unreasonable burden on employers in eases where disability is contested and a claimant has not yet established his entitlement to benefits.

Simply put, as reflected in the legislative history, Section 306(b)(3) was intended to speak to an employer’s burden in a suspension proceeding, after a compensable injury has been established, and was not meant to impose a requirement upon employers in all circumstances where alternative employment is offered to an injured employee. This critical fact distinguishes this case from the cases relied upon by Claimant to suggest that Section 306(b)(3) notice is required in the “claim setting.”

In Allegis Group, supra, the Commonwealth Court held that the employer’s failure to comply with Section 306(b)(3)’s notice provision precluded the suspension of benefits. Unlike the instant case, however, the employer had accepted liability for the claimant’s work-related injury, only to issue a notice of compensation denial a week later alleging that the claimant was not disabled by his injury and that it had offered the claimant a light duty position, which the claimant refused. Notwithstanding this muddled procedural history, it is significant that the employer in Allegis Group never issued a notice stopping temporary suspension. Thus, the claimant was receiving benefits at the time the light duty job offer was tendered, and the employer was seeking to change the status quo of such benefits, i.e., suspend them. The court held that “[u]nder these circumstances, Section 306(b)(3) clearly requires Employer to issue a notice of ability to return to work based on its receipt of new medical evidence.” Allegis Group, 882 A.2d at 5. As explained supra, this is the type of scenario for which Section 306(b)(3) notice was intended to apply and is distinguishable from what occurred here.

Claimant further relies upon the Commonwealth Court’s decision in Hoover, supra. The relevant facts in Hoover establish that the employer had denied liability for the alleged work-related injury, but had offered the claimant a light-duty position after his claim petition had been filed, but prior to his claim being adjudicated. Thus, like Claimant herein, there had been no determination of the claimant’s entitlement to workers’ compensation benefits at the time the job offer was tendered. In due course, the WCJ found that the claimant sustained a compensable injury and granted benefits, but suspended those benefits as of the date of the written job offer, concluding that the claimant was capable of performing the light-duty position. The decision was affirmed by the WCAB.

The Commonwealth Court reversed. In addressing the claimant’s evidentiary challenge to the WCJ’s finding that he was capable of performing the light-duty position offered by the employer, the Commonwealth Court opined that the employer failed to satisfy Section 306(b)(3)’s notice requirement. Without providing any analysis regarding why a notice of ability to work was required prior to a determination of a compensable injury, the court merely cited the statutory language of the provision and summarily concluded there was no evidence of compliance.

Employer contends that the Commonwealth Court’s decision in Hoover is distinguishable because the claimant had already filed the claim petition when the offer of employment had been made. While this assertion is true, we find that such distinction has no real significance as we conclude that the employer’s obligation to provide Section 306(b)(3) notice does not arise until after a claimant has become entitled to workers’ compensation benefits. Thus, for the reasons set forth supra, we decline to adopt the Hoover court’s application of Section 306(b)(3) where the employer has not accepted liability for the claim and the claimant has not proven his entitlement to benefits.

In her second contention, Claimant urges this Court to reverse the suspension of her benefits as of September 30, 2009, because there was no medical evidence establishing a change in her disability status, such as a doctor’s release indicating that she was capable of returning to work at the Jay Cooke School. She argues that where an injured employee has met her burden of proving entitlement to disability benefits in a claim petition proceeding, the burden shifts to the employer to prove a change of status through competent evidence. Absent medical evidence that she was capable of working at the Jay Cooke School, Claimant maintains the WCJ erred in suspending her benefits as of the date the position became available.

Employer contends there was no shifting of the burden here because Claimant never established a continued loss of earning power that would entitle her to ongoing benefits after September 30, 2009. It emphasizes that Claimant’s medical expert, Dr. Baugh, never testified that Claimant was disabled from teaching generally, but rather only that she was unable to teach in a school where the children had severe behavioral problems. Because Claimant herself testified that the Jay Cooke School did not have such problems, Employer maintains that Claimant only established a loss of earnings until September 30, 2009, when the alternative teaching job became available. It relies on case law establishing that the claimant bears the burden to prove the extent of his or her disability. See Connor, 624 A.2d at 758 (rejecting the contention that benefits could not be terminated absent a request by employer because such argument ignored that in a claim proceeding it is the claimant’s burden to prove the extent of his disability and the referee is free to grant benefits for a closed period if the evidence supports such finding); see also Rife, 812 A.2d at 754-55 (holding that “[t]he claimant also has the burden of proof in establishing the duration of disability throughout the pendency of the claim petition”). Having failed to present any medical evidence establishing that her loss of earnings continued after September 30, 2009, Employer contends that Claimant cannot now prevail by attempting to shift that burden to Employer. We agree.

The Commonwealth Court properly held that “[h]ere in the claim petition, the burden was on Claimant to show the duration of her disability, and she simply did not establish that it continued beyond September 30th.” Hilton, 84 A.3d at 378. See Inglis House v. Workmen’s Comp. Appeal Bd. (Reedy), 535 Pa. 135, 634 A.2d 592, 595 (1993) (holding that in a claim petition proceeding, a claimant must establish both the existence of a work-related injury and that the injury continues to cause disability throughout the pendency of the claim petition); Pa. Uninsured Emplrs. Guar. Fund v. Workers’ Comp. Appeal Bd. (Bonner & Fitzgerald), 85 A.3d 1109, 1114-15 (Pa.Cmwlth.2014) (holding that in a claim proceeding the burden is on the claimant to establish a right to compensation and prove all the necessary elements to support an award, including the burden to establish the duration and extent of disability).

Here, Dr. Baugh testified that Claimant’s work injury rendered her incapable of teaching at a school with children who had significant behavioral problems, but conceded that Claimant was capable of working in a school where the environment was conducive to teaching. See n. 2, infra (setting forth the relevant testimony of Dr. Baugh). Claimant, herself, testified that she had toured the Jay Cooke School, spoke with the school’s principal, and concluded that it was a quiet school where excellent teaching was taking place. Thus, while establishing entitlement to benefits for the period between March 3, 2009 and September 30, 2009, Claimant’s own testimony and that of her medical expert demonstrated that the loss of earnings resulting from Claimant’s work injury ceased as of date the position became available at the Jay Cooke School.

It was within the WCJ’s authority to accept the testimony of Claimant and her medical expert as credible and to grant benefits for a closed period. The WCJ, as the ultimate finder of fact, has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any 'witness in whole or in part. This Court will not disturb a WCJ’s findings when they are supported by the record, as is the case here.

Accordingly, we affirm the order of the Commonwealth Court.

Chief Justice SAYLOR, Justices EAKIN, TODD and STEVENS join the opinion.

      . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512(3). Section 306(b)(3) was added by the Act of June 24, 1996, P.L. 350 (Act 57).

      . The Commonwealth Court cited the following portion of Dr. Baugh's testimony:

        Q. Would you place her—is she capable of returning to any work at this point?
      A. I'm sure she is. I mean even she, herself, claims that she would like to go back to teaching in a less stressful environment. It’s something that she enjoyed doing and she did it full time at some point in the remote past. And she wants to do this now. She wants to go back to work but not under those circumstances.
      * * *
      Q. What is your prognosis for [Claimant] at this point?
      A. I think her prognosis is good as long as she stays out of those land [sic] of environments.

        Id., (citing Deposition of Dr. Baugh, Mar. 9, 2010, at 19).

      . The Pennsylvania Association of Justice (PAJ) filed an amicus brief on behalf of Claimant. It reiterates Claimant's contention that the notice provision in Section 306(b)(3) is mandatory and allows for no exceptions. As did Claimant, PAJ relies upon the Commonwealth Court’s decisions in Hoover and Allegis Group for the proposition that Section 306(b)(3) applies within the context of a claim petition proceeding where the claimant is not currently receiving disability benefits.
      Related to Claimant’s second issue, the PAJ argues that once a claimant is found to be disabled, there is a presumption of total disability, and the employer has the burden of proving that the claimant has experienced a change in medical condition and that there is suitable work available. It maintains that employers carry this burden regardless of whether they have filed a motion for modification/suspension of a claimant’s existing benefits or are attempting to limit the duration and extent of the award of disability benefits in a claim petition setting. As does Claimant, PAJ contends that here, there was no competent medical evidence establishing that Claimant was capable of returning to work at the Jay Cooke School in September of 2009.

      . To be precise, after the injury occurred in Allegis Group, the employer filed a notice of temporary compensation payable, which converted into a notice of compensation payable because the employer never issued a notice stopping temporary compensation. The employer later filed a notice of denial of compensation. Thus, unlike the instant case, the claimant was receiving benefits at the relevant time.

        . Prior to Act 57, this Court’s decision in Kachinski v. Workmen’s Comp. Appeal Bd. (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), set forth the procedure for the modification of a claimant’s existing benefits where the injured employee could return to work in some capacity. First, the employer had to produce medical evidence of a change in condition. Second, the employer had to produce evidence of a referral to a then open job, which fit in the occupational category for which the claimant had been given medical clearance, e.g., light work, sedentary work, etc. Third, the claimant had to demonstrate that he had followed through on the job referral in good faith. Finally, if the referral failed to result in a job, then the claimant's benefits continued. Id. at 380.

      . The "form prescribed by the department” referenced in Section 306(b)(3) is the LIBC-757 "notice of ability to return to work” form, which sets forth the statutory notice in a standardized format. See South Hills Health System v. Workers' Comp. Appeal Bd. (Kiefer), 806 A.2d 962, 963 (Pa.Cmwlth.2002).

      . Claimant’s argument begs the question of how one can be a "claimant” prior to filing a claim petition.

      . While the Commonwealth Court in Struthers Wells and Burrell set forth the aforementioned purpose of Section 306(b)(3), the claimants in those cases had already been receiving workers' compensation benefits at the time the notice of ability to work was alleged to have been required. Thus, further discussion of those cases is unnecessary to disposition of this appeal.


text:
    117 A.3d 246
    Maurice FOLEY, Appellant v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Appellee.
    Supreme Court of Pennsylvania.
    June 15, 2015.
   ORDER

PER CURIAM.

AND NOW, this 15th day of June 2015, the Order of the Commonwealth Court is AFFIRMED.


text:
    117 A.3d 246
    Brian C. MOORE, Appellant v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellee.
    Supreme Court of Pennsylvania.
    June 15, 2015.
   ORDER

PER CURIAM.

AND NOW, this 15th day of June, 2015, the Order of the Commonwealth Court is AFFIRMED.