PETITION FOR REVIEW

 (Justin Corliss vs Pennsylvania State Police)

In February of 2018 Representative Marsico, of Dauphin County, ignored the constitutional requirements of passing legislation and inserted an unedited registration scheme into an unrelated Bill so as to get something on the books to require people, formerly convicted of certain crimes, who already served their sentences, into an additionally punitive registration scheme. This bill created Subchapter I of the Sentencing Code and is of great concern for anyone who has already served their sentences as it results in a new, punitive scheme that retroactively requires effected people to report, have personal information broadcast to the public over the internet, and may require new consequences that amount to parole for crimes whose sentences have already been fully served, including tracking via global positioning systems. 


This Petition for Review is premised on the learned decision in Com. v. Muniz, to apply the same law to this unedited bill and finding that it violates the same predicates found in Muniz to invalidate SORNA as it applies to former registrants. Initially the Attorney General has facetiously tried to construe the Petition with a challenge to the Butler case; however, this analogy is misplaced, Butler affects SORNA registrants, not directly, those who are unaffected by SORNA, which is the design of Subchapter I. 
We encourage those affected to review this Petition and post any relevant comments as this proceeds through the Commonwealth Court. The objective is to expose deficiencies in this ill-advised legislation and to have the entire Subchapter I found to be vague, unconstitutional and void as enacted.

See the Petition for Review in PDF here: https://drive.google.com/open?id=1ip3oC0wxKxsoU5BA_b6Guk1uin2z5XF1

See Appendix here: https://drive.google.com/open?id=1W6Fgrf2d9rwCUTRcXbsZxr9bdHkJbrzh

Thank you for checking these out and have a good day!!

MOTON FOR RECUSAL OF JUSTICE DEBRA TODD

You can see the motion in PDF here:

https://drive.google.com/file/d/1Hb0vt2HLJT_Co9HK8G3dPOTOiGJy-Taq/view?usp=sharing

Or you can see it here also:

IN THE SUPREME COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA v JUSTIN CORLISS, 

Appellant

No. 176 MAL 2018

MOTION FOR RECUSAL OF JUSTICE DEBRA TODD 

TO THE Honorable Justices of the Pennsylvania Supreme Court: 

Petitioner, Justin Corliss, respectfully prays that the Honorable Justice Debra Todd recuse herself from any review of Petitioner's pleadings on allowance of appeal due to the palpable appearance of bias and states in support thereof: 

In reviewing case decisions, treaties and bench books in preparation for this petition for allowance of appeal it was discerned that of our many learned and professional judges a very small percentage of them endeavor to promote political positions above their presumed standard of impartiality. The Code of Judicial Conduct plainly sets forth standards of impartiality and fairness, which can easily be feigned, obfuscated or, hopefully, be genuine. The Code specifically prohibits bias and seeks to limit 'external influences on judicial conduct' such as 'social, political ... or other interests or relationships to influence the judge's judicial conduct or judgment.' [R.Jud.Con., Canons 2.2 - 2.4] 

The issue presented for recusal is premised on an inherent and ingrained bias that clouds the perception of impartiality due to a particular bent, or political philosophy that controls Justice Todd's ability to preside impartially in any matter involving allegations of sexual involvement with minors. 

Petitioner just received a copy of the scholarly paper: "Sentencing of Adult Offenders in Cases Involving Sexual Abuse of Children: Too Little, Too Late? A View from the Pennsylvania Bench." 109 Penn State Law Review 487 (2004). (article) This paper was authored by Justice Debra Todd, and while dated, it is specifically cited on her biography as provided online by this Court and represents a clear set of political ideologies that have permeated her judicial positions since. 

Observations that Raise the Specter of Bias 

The article plainly is a partisan and pro prosecution screed that omits any countervailing position or perspective that would call into question the innumerable claims and positions Justice Todd promotes as being untenable after a thorough and open minded review. For example, her data on recidivism is particularly skewed and has been rejected by numerous scholarly reviews since. Statistically and analytically, real sex offenders have the lowest rate of recidivism. Justice Todd's manifesto is a classic example of alarmist diatribes that lack impartial review or contemplation of countervailing thought. 

The article posits, in no uncertain terms, that all sexual contact with children is "violent," subversive and untreatable. In fact, Justice Todd remarks not once, nor twice, but three times that, apparently, the only real solution is "castration." She conflates any form of alleged inappropriate contact as violent felony one crimes, that justify the punitive designation of "sexually violent predator" on any perceived offender. 

Most egregiously, and specifically relevant to Petitioner's issues on allowance of appeal, there is a crime classification matrix Justice Todd appends to her article, and clearly endorses, as penned by the Allegheny County District Attorney's Office. This matrix, perhaps best examples, the political position being advanced by the district attorney's office and Justice Todd as it does not agree with statutory construction nor legislative intent. 

While the distinguishing facets of sexual conduct and legislative intent are complex, this matrix encourages tunnel vision in such a way as to be capricious and arbitrary. For example: 

• The crime of aggravated indecent assault (AIA) is logically distinguished from indecent assault as lacking the mens rea element of "indecent contact," which arouses or gratifies sexual desire in either person. [18§3101] Thus, the "aggravated" element relates to a design to harm, punish, humiliate or harass. Digital masturbation (a finger in an anus or vagina) is indecent contact; thereby, charging AIA is inapt, a fact recognized by the Pennsylvania Supreme Court in Com. v. Kelley, 569 Pa. 179, 2002 which found, but failed to articulate specifically, that Kelley's digital penetration of the vagina was designed to arouse or gratify sexual desire and thus this conduct amounted to indecent assault. Justice Todd's bias omits this salient detail of stare decisis as it conflicts with her political position. The only published opinion that reflects the legislature's intent of AIA is Com. v. Adams, 39 A.3d 310, 2012, where a co-defendant inserted fingers into the vagina of a tied up, battered and threatened at gun point victim for the obvious purpose of humiliation, threat and cruelty. Justice Todd never makes the required distinction in blind recitation to obiter dictum that never considered statutory construction or legislative intent. Her article recounts seven "examples" of cases where AIA was charged, absent any evidence to support it, and cosigned by the Superior Court with nary a concern. This capricious disregard is rampant in current appellate opinions that perpetuate the fraud that a finger in an anus or vagina automatically amounts to a felony two crime, absent any consideration of mens rea. 

• The district attorney's matrix limits "sexual intercourse" to "penis in a vagina" and forgets entirely that our legislature includes the anus in its definition. Instead, the design is to view any act as being "deviate" if not missionary style copulation.

• As is addressed, facially, in Petitioner's allowance of appeal document, there is great conflict in the expanded use of the involuntary deviate sexual intercourse (IDSI) statute's proper construction; however, the matrix complained of provides for a slew of conduct being classified as IDSI, such as cunnilingus, fellatio and sodomy. The legislature's definitions are not so vague as to be inclusive of acts that amount to indecent contact, such as cunnilingus and fellatio. To ignore that these acts are intrinsically designed to arouse sexual desire in either person, is to legislate by fiat. IDSI lacks an element of indecent contact and is distinguished by its use of force and inclusion of bestiality and use of foreign objects, any stretching of its purpose is without legislative design. 

While the examples above are in summary the depth of bias was exampled in Justice Todd's support, as an Advisory member, of the "Pennsylvania Crimes of Sexual Violence Bench Book" of 2015, demonstrating that any authorities that countered the pro prosecution bias of the text were simply omitted with blind reliance on select dicta which promotes inconsistent and contradictory interpretations of legislation intent on promoting a political agenda through judicial fiat. 

Starkly missing from Justice Todd's dissertation or appellate decisions is that children can easily be manipulated to say anything, claim false memories or advance one parent's designs to the demise of the other through false allegations of sexual contact. As with Petitioner, DNA evidence exists to prove false the bogus allegations made years ago. Justice Todd's bias would act to entirely negate the plausibility that incontrovertible physical facts impugn a prior conviction. 

Moreover, nary an iota of credence has been acknowledged by Justice Todd's article or appellate work that prosecutors could be wrong or driven by motivations inconsistent with the pursuit of justice. It would appear that Justice Todd would be shocked, shocked to find that the prosecutor here, Michael Rakaczewski, has gotten it wrong so often that it is astounding he is still allowed to prosecute people. FN1 

Petitioner is not coldly naive to Justice Todd's positions; however, these are preconceived misconceptions that permeate her holdings that are reflected as bias in all matters of review of sex cases that conflicts with the impartiality that is demanded and expected of our elected judiciary. 

WHEREFORE, for the forgoing, it is respectfully requested that The Honorable Justice Debra Todd recuse herself from these proceedings as the appearance of bias is just too great. 

FN1.  Petitioner is aware that William Spiess, Kasheen Thomas, Gene Thomas II, Jaleel Holden, Jose Lacen were each charged with egregious sexual assault charges by Rakaczewski that were belatedly nolle prossed when Rakaczewski finally admitted to a severe lack of reliability in the two complainants. Rakaczewski and detective Tom Lynott charged Jerimyah Rabinowitz, Gabryal Rabinowitz and a third person with serious sex crimes only to be acquitted after the complainants' severe lack of reliability was exposed at trial. Rakaczewski prosecuted  Merle deGroat under similar circumstances as the Petitioner, in that the complainant's mother exhibited a retaliatory animus toward deGroat and used her daughter as a proxy to exact revenge; however, DeGroat was acquitted, exposing the lack of reliability in the complainant's story. Additionally Rakaczewski pursued rape charges against Isidros Garces who was acquitted due to a lack of reliability in the uncorroborated statements of a child. Garces was similarly involved in a custody dispute. Rakaczewski has never prosecuted these complainants for making false complaints. The only two women prosecuted were Brandy Phy and Laura Gruver who, in 2009, were identified by competent detectives that recognized their claims as false before more citizens could be victimized by Rakaczewski. (twelve citizens erroneously charged with rape) Recently both Allen Neal and Antoine Mabel were acquitted of rape in trials that exemplify Rakaczewski's uncontrolled and excessive charging of serious felony conduct that juries are rejecting; yet, the bench and bar have failed to reel in his exploitive conduct. In another case Rakaczewski tried to coerce a plea out of Tyreis Ford, to rape, while knowing the complainant refused to cooperate further with any proposed prosecution. In addition to Petitioner Rakaczewski has brought fatally invalid Informations against Edward Terantino, Richard Ferrari, Bernard Schade, Christopher Carter and too many others, that failed to address the element of limitations because the charges had expired.

Respectfully submitted,

Justin  Corliss, MU6240

SCI Coal Township

1 Kelley Drive

Coal Township, PA 17866

PROOF OF SERVICE

I hereby certify that on May 2, 2018 I served a copy of Petitioner's "Motion for Recusal of Justice Debra Todd" via first class mail on the persons below, which satisfies the service requirements of Pa.R.A.P 121:

Honorable Judge D. Williamson Michael Rakaczewski, ADA

Monroe County Courthouse Monroe County Courthouse

Stroudsburg, PA 18360 Stroudsburg, PA 18360

In Pennsylvania, our judge's have a self regulating authority which allows them to personally weigh the political considerations and impact of recusal. Justice Todd refused to recuse herself while not contesting any fact asserted in this Motion. To recuse presents the implicit admission of bias, a political conundrum Justice Todd chose not to tread, for doing so exposes for review all the suspect opinions she authored that were based on the biases exposed in this motion. By not recusing Justice Todd will either conform to the biases outlined against her, and thereby prove that recusal was warranted, or, abandon her political designs and render a ruling that conflicts with her political positions.

PETITION FOR ALLOWANCE OF APPEAL 176 MAL 2018

The petition is in original format in this google document:

https://drive.google.com/open?id=1YNbsHQdFjxlrRhgn0c2WoxrlL2_48L_S:

Thank you for your time, interest, and concerns. We would like to hear your opinions, please leave a comment.

IN THE  SUPERIOR COURT OF PENNSYLVANIA

PETITION FOR REARGUMENT 
108 EDA 2017

COMMONWEALTH OF PENNSYLVANIA,

Appellee,

vs.

JUSTIN M. CORLISS, 

Appellant.

Justin Corliss appealed from the denial of post-sentence motion, 

a panel of this court affirmed on December 8, 2017 

______________________________

At Cases No. 1749 & 2173 CR 2013

Monroe County Court of Common Pleas

David J. Williamson, Judge

Order in Question 

On December 8, 2017 a panel of this court rendered a non-precedential decision affirming the lower court's post-sentence motion opinion regarding two distinct cases/convictions at Com. v. Corliss, No. 108 EDA 2017. [attached as Exhibit A]

Points of Law and Facts that were Overlooked or Misapprehended

1.   This panel failed to sua sponte address the illegal mandatory minimum sentences imposed in violation of ex post facto prohibitions and being contrary to Alleyne v. U.S., 133 S.Ct. 2151, 2013 and Com. v. Wolfe, 140 A.3d 651 (Pa. 2016) finding the statute "irremediably unconstitutional on its face, non-severable and void." [see 1/20/17 1925(b), para. #9]

2.   This panel failed to sua sponte address the punitive imposition of the Sex Offender Registration and Notification Act (SORNA) and the erroneous classification as a sexually violent predator, as being in violation of ex post facto prohibitions and the findings of Com. v. Muniz, 164 A.3d 1189 (Pa. 2017) and Com. v. Butler, 1224 WDA 2016 (applying Alleyne to repudiate any fact found by a judge and not a jury) that found SORNA to be punitive and presents a challenge to the legality of sentence. The Butler court raised Muniz issues sua sponte. [1925(b) issue #7]

3.   This panel overlooked the illegal sentencing on the time barred claims in 2173 CR 2013 where the lower court failed to credit Appellant with all time served awaiting trial pursuant to 42§9760. [1925(b) issue #10]

Appellant raised these illegal sentencing issues below but was barred from arguing them on appeal due to word limitations; however, an illegal sentence can be raised at any time and other panels of this court have raised similar issues sua sponte recognizing the injustices.

The panel's ability to review substantive issues presented on appeal was severely compromised due the lower court's refusal and failure to address discrete issues raised in post-sentence motions and the 1925(b) statement filed, necessitating a remand to cure as the result is an abrogation of the right to appeal and a deliberate delay and thus the denial of justice.

The following issues of error were fully and properly briefed by Appellant; however, the panel erroneously adopted the misdirection and obfuscation of the trial court's opinion without reference to Appellant's argument, controlling authorities or cited facts, all of which were ignored by the lower court but uncontested by the Commonwealth. The lower court misconstrued facts and issues resulting in a fraud on this court that has gone unresolved through an abdication of fair review of the true issues briefed.

There are three fundamental issues underlying the relief due:

• Can a judge relieve the Commonwealth of proving an element of crime during a jury trial?
• Does our Legislature distinguish cunnilingus/fellatio from 'sexual intercourse' because it is properly construed as indecent contact?
• When the Commonwealth elicits known to be false testimony is the defense required to cure it?

4.   The panel erroneously attempted to justify the trial court's failure to properly charge the jury with the fact based element of negating limitations - an element of every crime, (accord 18§103), by relying on inapposite antique dicta that did not involve a jury trial. 

Appellant has a constitutional right to a trial by jury and at no time waived that right to allow the judge to invade the province of the jury and relieve the Commonwealth of the burden to prove every element of the crimes alleged.  

Protections from prosecution under the statute of limitations is a substantive right and that right may not be abrogated on the mere say-so of a judge when date facts must be established and the relevant law explained to the jury. Accord Com. v. Powers, 577 A.2d 194, 1990 ("... the trial court specifically instructed the jury that in order to convict appellant, they had to decide that the offense occurred between March 21, 1986 and September 4, 1986").

Here no evidence exists that any complainant was prevented from making their claims timely through fear, coercion or threat; thereby, any reliance on the waived by the prosecution and unproven exception under 42§5552(c)(3) is misplaced. Accord. Com. v. Louden, 803 A.2d 1181, 2000. 

The panel's claim that date facts and relevant law pertaining to limitations can be decided by a judge during a jury trial is an incorrect assessment of well settled law that violates the right to a trial by jury and conflicts with directly relevant authority cited by appellant, specifically Com. v. Bethlehem, 570 A.2d 569, 1989, (alloc. denied) 525 Pa. 610, 1990. Of note is this panel's reliance on the mere dicta of Com. v. Groff, 548 A.2d 1237, 1988. The only relevant cite from Groff is that "...the ultimate question of whether the statute of limitations was violated depended upon a question of fact that was within the province of the jury." Id. @ 1246.

Sub-issue: 

This panel overlooks the intent and design of the exception purportedly claimed (but actually waived) by the Commonwealth, for it does not eradicate limitations entirely, but suspends them in certain situations, not applicable here. Accord Horowitz v. Horowitz, 600 A.2d 982, 1991; Com. v. Louden, 803 A.2d 1181, 2000 (analogizing 42§5533(b)(2) and 42§5552(c)(3) as having an identical purpose). The exception does not eradicate protections afforded Appellant but commands an element of proof to invoke the exception that was not established at trial. 

Sub-issue: 

Though not relevant to the failure to charge the jury on limitations, the panel overlooks that the prosecution failed to assert any claimed reliance on the exception under 42§5552(c)(3) upon omnibus review and therefore waived it. Accord Com. v. Morrow, 682 A.2d 347,1996, FN2. See also Com. v. Romberger, 474 Pa. 190, 1977 (when an issue is cognizable in a given proceeding and is not raised it is waived and will not be considered on a review of that pleading). As such, the lower court directed "notice" can not act to afford the Commonwealth an exception that was not pled, met by evidence nor given to the jury to decide the relevant facts and law.

Sub-issue: 

Even assuming, in arguendo, that the non-tolling exception under 42§5552(c)(3) was pled at the omnibus stage, the two charges at 2173 CR 2013 are still barred as the limitations period in 1997 (5 years) expired prior to 2013 and no evidence exists from R.V. that amounts to the violent, non-sexually arousing touching anticipated by statute to justify aggravated indecent assault (AIA). The testimony amounts to indecent contact (an element of indecent assault only) which has a two year limitations period. No court possessed jurisdiction to hear these time barred claims.

Sub-issue: 

Even assuming, in arguendo, that the non-tolling exception under 42§5552(c)(3) was pled at the omnibus stage, the four charges at 1749 CR 2013 are still time barred as the two year limitations period expired in 2012 and C.C. was not yet 18 years of age nor claimed any reason to justify the exception. This panel erroneously ignores the legislative intent and plain wording of the exception set forth by Appellant in his Reply Brief.

5.   The panel overlooks, misapprehends and failed to address statutory construction and legislative intent in relying on antique dicta that erroneously conflates fellatio and cunnilingus to be "sexual intercourse" which is not anticipated under IDSI or incest. Our Legislature distinguishes fellatio and cunnilingus from "sexual intercourse," [see 18§6312, Definitions; 18§5903(b) 'sexual conduct,' distinguishing acts] as the claims amount to indecent contact which is not an element of IDSI or incest. [App. brief issue #2, pps. 19-22] This may be an issue of first impression as no court has yet to address Legislative intent and statutory construction regarding the acts of fellatio and cunnilingus which are plainly intended to 'arouse or gratify sexual desire in either person' - an element of indecent assault only.

This panel cited only to dicta absent any constructive review. It is patently absurd to construe cunnilingus and fellatio as 'violent' crimes by erroneously changing the statutory term 'os' to 'oral.' The panel cites inapposite cases that involve annal penetration with a penis that was not claimed here.

6.   This panel overlooked, and failed to address, the erroneous surprise instruction given to the jury that allowed them to construe "oral contact" as an element of IDSI and incest. Appellant was not on notice to defend against this conjured element that our legislature did not include as an element of IDSI or incest. [App. brief, Issue #2, p. 24] See Com. v. Taylor, 471 A.2d 1228, 1984 (erred in allowing conviction based upon conduct not included in the accusation against defendant) See also Com. v. Zheng, 908 A.2d 285, 2006 (same).

7.   The panel has erroneously construed the prosecutor's duty to correct testimony by Danielle Brink, that he knew to be false, as a "Brady" claim when the facts meet those of Com. v. Romansky, 702 A.2d 1064, 1997 (that when the Commonwealth obtains a conviction by using uncorrected testimony that the prosecutor knows to be false, a miscarriage of justice, which no civilized society can tolerate, has occurred) and U.S. Supreme Court cases cited. [App. brief, Issue #3, p. 28] The facts establish Danielle Brink's testimony to be false. The panel tacitly admits the prosecutor knew, but did nothing. The discrete facts that represent proof of false testimony was completely ignored with an irrelevant focus on whether the 1998 verdict of acquittal rendered ALL of the 2016 trial testimony false. The issue of Danielle Brink's perjury is that the prosecutor had her make claims never before made and that directly conflict with evidence adduced in hearings where Brink was subject to cross examination. Appellant was never under a duty to introduce facts of Brink's perjury that were known to the Commonwealth - who elicited it, to construe otherwise is to impermissibly thrust the burden of policing the dishonest Commonwealth on the Appellant when the trial judge (who was equally aware of the perjury) sat idly by and allowed the perjury to go uncorrected.

8.   The panel erroneously overlooked the subquestion to appealed Issue #3 that is properly included in the 1925(b) statement filed of record [App. Brief, Exhibit C, p. 2, Issue #4]. By erroneously relying on the lower court's refusal to address this issue the panel denies Appellant fair review thereof.

9.   The panel erroneously overlooks the fact that Appellant had properly sought judicial notice below of the original exculpatory DNA report of March 9, 1998 - that was unopposed, the lower court then proceeded to misconstrue that report to fraudulently vindicate the false testimony of Danielle Brink. This panel failed to recognize that the new report of 3/1/17 merely clarifies the original DNA report that the lower court belatedly lied about in his post-sentence opinion. The original exculpatory report was 'of record' and available for review as was evidenced by the lower court's direct reference to and misconstruction thereof.

10.   This panel overlooks the fact that the lower court interposed fraudulent claims of the exculpatory DNA evidence being "inconclusive" to which an expert was hired to rebut this fraud. This deliberate misconstruction was penned on ex parte claims, absent review in open court and after post-sentence motions were filed. A motion with this court, for a remand exists to properly redress this fraud; however, no action on the motion has yet issued.

11.   The panel overlooks and/or misapprehends the last issue sought to be litigated regarding deliberately omitted exculpatory and credibility evidence known to the prosecutor that materially challenges C.C.'s entire story as being recently fabricated. While tacitly admitting that defense counsel was incompetent or ineffective per se for not putting on the evidence, the panel erroneously adopts another 'Brady' claim while failing to recognize the prosecutor's duty to put all known evidence and facts in front of the jury - to seek the truth. This panel tacitly ignores the sworn duty of the prosecutor and the purpose of a trial. 

Concise Statement

The bulk of the misapprehensions and overlooking of facts/issues actually raised in post-trial motions and argued on appeal are resultant of the panel being materially misled by the trial court's misplaced advocacy for the prosecution. The lower court has an inherent interest to vindicate himself - even if it means obfuscating facts and law - after the fact - to do so. This panel's abject deviation from what Appellant sought review of is shocking as the opinion amounts to a partisan obstruction of justice and an exercise in futility as the panel relied entirely on the challenged claims of the lower court. Beyond this, the most striking result of the panel's opinion is the utter dearth of review of the prosecutor's duty to seek the truth with known and corroborated evidence of C.C.'s lies. Plainly, the lower court deliberately ignored anything that would impinge on the prosecutor's conduct - this is the hallmark of a biased judge that warrants recusal.

Relief Sought

The trial court's post sentence opinion mischaracterized the discrete issues raised in post-sentence motions depriving this court of an opportunity to resolve issues on appeal. This matter should be remanded for the lower court to properly address the issues raised in Appellant's statement of matters complained of and to conduct a hearing to determine why the court materially misrepresented the exculpatory DNA evidence as sought by Appellant previously. 

The trial court specifically refused to address the prosecutor's duty to seek the truth and disclose to the jury facts he was aware of that conflict with his witness's testimony, the trial court should be compelled to address these facts to aid this court in resolving issues before it.

This court's review was impaired as being through the skewed perspective of the lower court's self vindication, this alone demands an impartial review of the issues below not burdened by the fear of reversal but towards justice. 

The lower court should be required to produce evidence that the exception to limitations was pled on review of the omnibus proceedings, and if so, what evidence was produced at trial to justify it's application to the cases argued and how that was proven to the jury beyond a reasonable doubt, notwithstanding that the evidence adduced at trial only proves that the limitations periods did in fact expire prior to Appellant being charged. 

The December 8th Opinion by this court should be withdrawn to allow for inclusion and review of the issues stated herein with the implicit understanding that the trial court's opinion is fatally flawed.

Such relief is sought in the interests of justice.

Respectfully submitted,

December 18, 2017

Justin Corliss, MU6240

SCI Coal Township

1 Kelley Drive

Coal Township, PA 17866

Exhibits:

1. 12/8/2017 Superior Court Opinion 
2. 12/15/2016 Opinion Denying Post-Sentence Motion
3. 1/20/2017 Statement of Matters Complained of on Appeal
4. Com. v. Bethlehem, 570 A.2d 563, 1989
5. Com. v. Taylor, 471 A.2d 1228, 1984

BRIEF OF APPELLANT - direct appeal of false conviction to Superior Court

Dear readers,
We would like you to read this in the original format (PDF) so click on the links below:

1. Brief of Appellant 108 EDA 2018
https://drive.google.com/open?id=1t30dvQTC8K6KlAtxSEW5_Njrx3TSQgQ4

2. The Exhibits
https://drive.google.com/file/d/1z8eao1ziGUrsg4piolL8LjZtUpCGZTQV/view?usp=sharing

Thank you for taking time reading this. I am trying to overturn these false convictions because I am innocent. Please leave comments and share to your friends or attorneys or anybody who you think will be interested. Any suggestions are welcomed.

Thank you,
Justin Corliss

DNA EVIDENCE EXCLUDES CORLISS - 

UPSETTING YEARS OF "INCONCLUSIVE" CLAIMS

IN THE SUPERIOR COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

v

                     JUSTIN CORLISS,

Appellant

No. 108 EDA 2017

CCP No. 1749 & 2173 CR 2013

PETITION TO REMAND TO THE TRIAL COURT

TO THE Honorable Judges of said court:

NOW COMES, Appellant, Justin Corliss in the above captioned matter seeking a remand to provide the trial court an opportunity to correct its claims regarding the DNA evidence and to provide some reasoning for its base rejection of the prosecutorial misconduct averred as no record evidence exists to support the lower court's claims. Appellant states in support thereof:

1. These combined appeals are resultant of a joined trial of two disparate cases, one a patently time-barred prosecution of indecent contact alleged to have occurred prior to July 1997 [2173 CR 3013], the second, a time barred prosecution of indecent contact claims alleged to have occurred prior to June 2010 [1749 CR 2013]. In both cases the indecent contact claims have erroneously elevated to justify felony convictions, for crimes having no elements of indecent contact.
2. Of import here is that the Commonwealth's "bad acts" witness, Danielle Brink, testified at trial that in 1997 she had sexual intercourse with Appellant, for which he was convicted of in 1998, and, that semen was found in her underwear, and, she claims, now in 2016, that the testing conducted on her underwear produced "inconclusive" results; however, the jury from 1998 did not hear these claims, over defense objections.
3. Danielle Brink's testimony of 5/31/2016 is consistent with the 1998 Commonwealth claims that the DNA results were "inconclusive." Appellant diligently contested this 2016 trial claim, that was left unchanged by the prosecution, because the DNA results actually "exclude" Appellant as the donor of ANY DNA obtained from Danielle Brink's underwear in 1998.
4. By order and opinion dated December 15, 2016 the trial court plainly misapprehended the DNA results by erroneously and sua sponte, asserting the results are "inconclusive" absent any record evidence to support such. The original report writer, Beth Ann Giles of the Greensburg Regional Laboratory has never been called to testify to the results of her test. [3/9/1998 Report #98-0979-G, attached as Exhibit A]
5. The lower court's 12/15/2016 erroneous conclusion that the DNA report is "inconclusive" is done in such a manner as to vindicate the 1998 conviction and Daniele Brink's claims in the 2016 joint trial, absent any opportunity for Appellant to present evidence in open court that contradicts the erroneous claims of the DNA results being "inconclusive." [12/15/2016 Op. at 8-11, attached as Exhibit B]
6. On March 1, 2017, Appellant received an independent analysis of the original Greensburg Regional Laboratory report that explains, with expert erudition, that the courts and the Commonwealth have mistakenly labeled the DNA results as being "inconclusive" and yet, in fact, the results plainly "exclude" Appellant as the donor of any DNA found in Danielle Brink's underwear in 1998, as has been contentiously propounded by Appellant for nearly twenty years. [3/1/2017 Report by Dr. Monte Miller, attached as Exhibit C].
7. The trial court's opinion of 12/15/2016 is self-styled, based on an ex parte review, does not rely on any DNA expert analysis, and, it is opined that judge David J. Williamson is not a DNA expert, has no background in biological sciences nor relied on facts established in open court. The Commonwealth has refused forever to defend their "inconclusive" claims from 1998 as no report writer nor DNA expert has weighed in on this issue, until now.
8. Had Appellant's first and second juries been properly informed, by the prosecution, that the Commonwealth's laboratory results, of DNA evidence, excluded Appellant, the outcome of both trials would have been different in that Danielle Brink's credibility would have been destroyed.
9. While the incontrovertible physical fact rule holds that where the testimony of a witness (or as here, a judge) is contradicted by incontrovertible physical facts, the testimony of such witness cannot be accepted, it being either mistaken or false, and a verdict based on it will not be sustained. See Lamp. v. Pa.R.R, 305 Pa. 520, 1931.
10. As provided, the lower court's 12/15/2016 Opinion was sua sponte rendered, Appellant was not provided due process of law, in an adversarial setting to test the conclusion rendered by the court, that to date, has not been proffered by the Commonwealth. Plainly there has been a commingling of the prosecutorial and judicial functions here.
11. Additionally, Appellant complained of gross prosecutorial misconduct involving the presentation of known false evidence and the omission of known exculpatory evidence; however, the trial court has refused and failed to conduct any fact finding on these issues which impedes this court's ability to fairly weigh the facts and law attendant thereto. Absent a full and fair review thereof, by the lower court, resolution will only be delayed further.

WHEREFORE, for the foregoing, it is respectfully averred that this matter should be remanded to the trial court for the conduct of  a full and fair evidentiary hearing regarding the DNA evidence, the deliberate omission of exculpatory evidence and the introduction of known false evidence for absent this appellate review will be severely hampered which will result in the delay and thus, the denial of justice.

Such relief is sough in the interests of justice

Respectfully submitted,

March 2, 2017

Justin Corliss

MU6240

P.O. Box 200

Camp Hill, PA 17001-0200

Link for exhibits (to see DNA Expert's Opinion): 

https://drive.google.com/open?id=0B88pG3w3RvP0UWFkVFZmczlzY28

IN THE COURT OF COMMON PLEAS, MONROE COUNTY, PENNSYLVANIA

COMMONNWEALTH OF PENNSYLVANIA : No. 1749 CR 2013

v : No. 2173 CR 2013

JUSTIN CORLISS, :

Defendant : Post-sentence Motions

_______________________________________________/

BRIEF IN SUPPORT OF POST SENTENCE MOTIONS

Defendant filed timely post-sentence and an addendum to post-sentence motions. This Court granted reconsideration of sentence and provided until November 17, 2016 to file briefs.

Defendant set forth supporting authority in his Post-Sentence Motion filed; however, for purposes of clarity certain issues are addressed here, in support thereof.

The exculpatory DNA evidence

Michael T. Rakaczewski elicited non-relevant testimony from Danielle Gentile/Brink regarding her claim of having consensual sex with defendant during the evening time frame  of July 9, 1997.

This testimony amounts to perjury and was elicited to prejudice defendant by allowing the jury to believe it to be propensity evidence and to convict based on a preponderance of evidence basis. Rakaczewski had a duty to properly inform the jury of the exculpatory nature of the test the Commonwealth obtained in 1998 because such evidence challenges Brink's credibility.

The bulk of relevant evidence regarding the DNA is set forth in the post-sentence motion; however, this court issued an Order on October 12, 2016 reversing statements made at sentencing regarding the court's intent to address the DNA evidence, including the "non-sperm fraction" that this court mentioned as apparently coming from an ex-parte source. (as not being of record - anywhere)

At sentencing this Court made a number of claims relating to the DNA, [N.T. 10/7/16 @66-71], tacitly recognizing its importance but representing it in such a manner as to render it, somehow, not important. Specifically, this Court claimed that the "Greensburg testing as well as the Cellmark testing" [Id @67] were "addressed". However, no record support exists for this claim. In fact, excepting the 2008 evidentiary hearing with Judge Smith, no judge of record has ever "addressed" either report nor heard from the report writers. This Court's sentencing claims regarding whether results include, exclude or are "inconclusive" [Id. @68] patently ignore the "match" obtained by the Commonwealth's lab. Clearly, if the DNA in semen found "matched" Danielle Gentile's DNA - the defendant was "excluded". This Court suffers from confirmation bias. Gentile did have sex with someone on or about July 9, 1997, yet, it was not the defendant - the DNA evidence validates this. Thus, unless Danielle Gentile is a hermaphrodite, only a male relative could have deposited "matching" semen in her vagina that leaked onto her underwear. Our Legislature has spoken to facts such as these, they call it incest and rape. These unexplored facts warrant that an evidentiary hearing be held to create a true record.

Defendant avers that it is error for this court to abandon this issue as it directly implicates nearly EVERY aspect of these cases involving the abrogation of a fair trial, due process of law, sentencing and SORNA related issues. Had Rakaczewski not opened the door and pursued Brink's perjury this court's Oct 12, 2016 Order might have been apt. The only way to unring the DNA bell is to properly grant a mistrial.

Initially, the "match" obtained by the Commonwealth's testing laboratory not only exonerates the defendant of the false 1998 conviction it inculpates, definitively, Danielle Gentile/Brink's male family member (father, uncle or cousins). This evidence of an incestuous rape has been staring Tom Lynott, the Commonwealth and this Court in the face since March 1998. Only through pervasive fraud has this proof of the real crime been ignored and obfuscated as "inconclusive" to falsely prosecute the defendant for purposes other than the pursuit of justice.

The inconclusive fraud was interposed by former ADA Sherri Stephan and worked to confuse judges and reviewing courts for years as the DNA results were never introduced as evidence. However, Senior judge Charles B. Smith established the law of this case in 2008 when stating :

"The evidence presented at the hearing showed improper handling of the DNA evidence obtained from the complaining witness and an arguable misrepresentation of what the DNA evidence revealed." [Op. 4/21/2008 @2]

The "improper handling" goes to the unauthorized CellMark labs test and the refusal to provide the defense an opportunity for independent testing. The "misrepresentation" goes to the use of the fraudulent term "inconclusive". Judge Smith's findings are binding on this court and Rakaczewski under the law of the case doctrine.

In 1998 a familial DNA match was not terribly common. Paternally related DNA could not be discriminated from their offspring using RFLP testing. If a suspect DNA (i.e. the semen found in Gentile's underwear) sample "matched" Danielle's DNA, it could have implicated a family member. (Here, Gentile has no brothers but lived with her father) It was uncommon, in 1998, for a daughter/relative DNA "match", as here, simply due to the novelty in testing. However, it is common knowledge in criminal justice circles that most child sexual assaults are perpetrated by close family members.

Recently, studies have found that we, both male and female offspring, inherit sixty percent of our DNA from our fathers. Therefore it is perfectly logical that the "match" obtained in 1998 between Danielle and the DNA of the semen found in her underwear was not "inconclusive" at all, it incriminates a male family member. To illustrate how familial DNA is used to solve crimes review of three cases can help:

1. Teresa Bradish was 13 when she was raped and murdered in Wyoming in 1985. In 2006 DNA testing was done on the semen found in her vagina to compare to DNA profiles on record in hopes of finding her killer; however, astute lab technicians noted that Teresa's DNA was similar to DNA of the semen found - suggesting a parent-child relationship. Police tracked down Teresa's father in Texas (who like Gentile moved out of state) and eventually established his culpability in the incestuous rape and murder of his daughter. http://www.denverda.org/DNA_Documents/Bradish.pdf 
2. Dennis Rader was identified as the "BTK killer" (bind, torture, kill) in Kansas using familial linked DNA from his daughter. Rader had taunted police by delivering to them a compact disc that was linked to a library frequented by Rader. Police found that Rader's daughter had a pap smear done at Kansas State University and obtained her DNA profile and compared it to crime scene evidence and found a link that suggested a parent-child relationship. This "match" was sufficient to convict Rader's father Dennis as the BTK killer. http://www.denverda.org/DNA_Documents/Familial_DNA/News Report re Dennis Rader.pdf
3. In Los Angeles a perpetrator of slaying at lest ten women came to be known as the "Grim Sleeper". Based on DNA left on the victims a search was done on California's DNA database and uncovered a potential match to a convicted offender who was believed to be the Sleeper's son due to the parent-child similarity in DNA profiles. In 2010, after a sting operation in which officers surreptitiously collected a piece of pizza discarded by the suspect, tests revealed a match to crime-scene samples and the suspect Lonnie Franklin was arrested based on the link from his son's DNA. http://articles.latimes.com/2010/jul/08/local/la-me-grim-sleeper-20100708

These cases are illustrative of how to properly view the "match" obtained by the Commonwealth in 1998 and how the desire to convict the innocent defendant led to tunnel vision as excluding evidence of the real crime and its perpetrator which examples confirmation bias at its worst.

Because the 1998 conviction was obtained absent the DNA evidence, that "matched" Danielle's DNA  to the semen found in her underwear, the conviction amounts to a manifest miscarriage of justice and warrants sua sponte vacating of such. Additionally, it was incumbent on Rakaczewski to properly inform the jury of the "match" and its relevance as it relates directly to Gentile/Brink's credibility and motive to falsely implicate the defendant.

The false conviction from 1998 implicates the propriety of this conviction, sentencing and SORNA considerations and is thus highly probative of the entire proceedings instituted against defendant for absent such Catherine Tsang would have had no basis to induce claims of "touching" from C.C. to be "corroborated" by Danielle's fraud.

Defendant avers that a mistrial must be granted here and that the 1998 conviction be vacated on the strength of the DNA "match" found by the Commonwealth's testing laboratory in 1998.

This Court's October 12, 2016 Order claims that the "matter has been fully litigated on appeal." [Op. 10/12/16 @1] However, this is an incorrect assessment of the record facts. There is no evidence that the March 9, 1998 DNA "match" had been entertained by any court excepting Judge Smith. Defendant's "actual innocence" has never been litigated by any court. Notwithstanding these incontrovertible facts, in instances such as this where reliance on the "law of the case" would amount to injustice, deviation therefrom is expressly anticipated  to cure manifest miscarriages of justice. Accord. Com. v. Starr, 541 Pa. 564, 1994, @576.

Defendant avers that by refusing to properly entertain the exculpatory results of the DNA "match" to Gentile's DNA that this court errs and abuses its discretion as a matter of law and does so out of partiality to punish the defendant and to fraudulently vindicate the misplaced bias and animosity this court has exacted on the innocent defendant for years.

Statute of Limitations

Defendant properly, repeatedly and contentiously challenged this court's suspect interpretations of the statute of limitations in both cases; thus, the issue was clearly disputed. Like jurisdiction, the statute of limitations is an element of each crime and must be submitted to the jury (as this was not a bench trial); however, no record evidence exists that the jury determined whether the element of timeliness was proven beyond a reasonable doubt as required by law. Under our system of law this court can not sua sponte remove from defendant's jury issues of fact that the jury was to be charged to determine. 

Additionally, although not dispositive this court has erroneously used the word "until" to describe the intent of 42§5552(c)(3) [Op. 10/7/16 @8]. Plainly , if our Legislature intended to say such, a mere stroke of the pen would suffice but they chose not to.

Both convictions from 2173 CR 2013 and four charges from 1749 CR 2013 must be vacated with prejudice as not established beyond a reasonable doubt by defendant's jury.

"Touching" vis a vis "Intercourse"

Defendant has set forth numerous cases, some post-Kelley, that have properly adduced the conduct claimed by C.C. to amount to "indecent contact", as the "touching" that was testified to.

This court, and Rakaczewski, rely on one or two cases that purport to establish other crimes not requiring indecent contact; however, these cases are inapposite the facts here and amount to mere dicta.

In the cases of Com. v. Suarez, 523 CR 2014 and 1814 CR 2014 (CCP Monroe County, Judge Higgins) Rakaczewski similarly over-charged Suarez with IDSI and AIA. Based on testimony that Suarez "touched (N.D.'s) private part and licked it." [N.T. 10/29/14 @26] However on this testimony the jury properly found it amounted to indecent contact and acquitted him of IDSI and AIA. The only difference here is that defendant was prejudiced by "bad man" claims which blinded his jury in making proper conclusions based on identical testimony.

Resolution of the conflicting claims is to be done in such a manner as to be in the interests of defendant's liberty. Thus, if this court claims cunnilingus is "intercourse" with no case directly on point as from a statutory construction/legislative intent perspective, and the defense posits cases and legislative intent/statutory construction to the contrary, our law is clear, the statutes must be construed in defendant's favor. The evidence adduced at trial plainly amounts to "touching" which is only an element of indecent assault.

This issue is relatively simple in that Rakaczewski is maliciously over-charging in reliance on mere dicta and not legislative intent/statutory construction. Just because some ineffective attorney failed to properly assert or argue  overcharging in some other case doesn't mean its okay here. Rakaczewski's conduct would not be tolerated in other, more progressive counties, he would have been fired years ago.

"Course of conduct"

Title 42§5552(d) states, in relevant part:

"An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears ..."

This relates to the commission of offense language which is mandatory in charging and making out criminal allegations. In these cases the crimes of aggravated indecent assault (18§3125), involuntary deviate sexual intercourse (18§3123) nor incest (18§4302) contain a "legislative purpose to prohibit a continuing course of conduct" and thus dates certain must be established for these serious crimes, as a course of conduct clause does not "plainly appear". Only for indecent assault did our Legislature "plainly" prohibit a "course of conduct" as is relevant here. (See 18§3126(b)(3)(ii) "there has been a course of conduct ...")

Our Legislature anticipated "course of conduct" type of crimes and incorporated such language where they deemed appropriate for purposes of grading only.

As such, it is inappropriate for this court to conclude  that a jury may have inferred numerous or "at least two" incidents in 2173 CR 2013 [Op. 10/17/16 @4] or that C.C.'s testimony "indicates more than one incident." [Id. @8] when, this court tacitly admits that the "incidents" were not described with the required particularity. The defendant had properly sought a more definite statement of particularity in these cases, by filing a bill of particulars which did not cure the problem. Serious violent felonies require specificity which was not adduced here. 

Rule 600 - Speedy Trial

The right to a speedy trial is a fundamental constitutional right. Klopfer v. North Carolina, 386 U.S. 213, 1967. Rule 600 of the Pennsylvania Rules of Criminal Procedure has been adopted to ensure compliance with this right. Com. v. Myrick, 468 Pa. 155, 1976. According to Rule 600, a criminal action commenced after  July 1, 2013, "shall commence within 365 days from the date on which the complaint is filed."  Further, "when the Commonwealth has failed to exercise due diligence" such delay "shall be included in the computation of the time within which trial must commence."  [Pa.R.Crim.P. No. 600(c)(1)]

It is black letter law that the Commonwealth must exercise due diligence in attempting to try the appellant timely. Due diligence does not require perfection, it does require the Commonwealth to put forth a reasonable effort. Com. v. Ramos, 936 A.2d 1097, 2007. Additionally, the Commonwealth's duty to be diligent exists throughout all stages of a case. Com. v. Hawk, 528 Pa. 329, 1991. Thus, the Commonwealth cannot "carelessly linger in the early stages" of a prosecution. Com. v. Kearse, 890 A.2d 388, 2005. Also, the duty to ensure that a case is timely tried rests with the Commonwealth, not with any other office or entity. Id.

Our law requires that the Commonwealth "must do everything reasonable within its power to guarantee that a trial begins on time," and has the burden of demonstrating by a preponderance of the evidence that it exercised due diligence. Com. v. Ramos, supra.

The Pennsylvania Supreme Court has condemned and/or otherwise expressed concern over the judicial tendency to accept excuses for the Commonwealth's failure to bring defendants to trial within the limits of the Rule. Com. v. Browne, 526 Pa. 83, 1990 @905-06. Indeed, it is plain that all courts, must not seek to condone or devise such excuses but must, instead, preserve the vitality of the rule. Id. The vitality of the rule cannot be preserved if courts rationalize the Commonwealth's failure to follow it. See Com. v. Bradford, 2 A.3d 628, 2010.

At one time this court claimed that due to resolution of issues interposed by the Commonwealth, that "continuances" were somehow due to the defendant. [Order 1/28/14 and 5/5/14] Even were the sua sponte interposed "continuances" valid, a "continuance" amounts to a waiver of a fundamental right to a speedy trial and courts should indulge every reasonable presumption against waiver and should not presume acquiescence in the loss of any fundamental right. Accord. Com. v. White, 516 A.2d 726, 1986. No record evidence exists that defendant was ever colloquied for any alleged "continuance" sua sponte interposed. (Accord Pa.R.Crim.P. No. 121)

As such, the Commonwealth has not, nor can, establish that they exercised due diligence to bring defendant to trial prior to the expiration of 365 days in either case and Rule 600 requires these cases be dismissed with prejudice.

This case is not substantially different from Com. v. Surovcik, 933 A.2d 651, 2007, where attorney Ventrella filed an omni-bus pretrial motion, a motion to dismiss, and a petition for a writ of habeas corpus. Ventrella had the temerity to seek to certify an issue to pursue an interlocutory appeal, and when that was denied he filed a petition for review that was denied. Ventrella also filed a motion to dismiss and to amend the information. The Superior Court conducted no "Monroe Math" computation to punish Surovcik for her attorney defending diligently and properly vacated the conviction for failure to try Surovcik within 365 days as required.

Deliberately Omitted Evidence - Credibility Challenges/Perjury

Defendant has set forth in his post-sentence motion substantial instances of fact that establish that Danielle Gentile/Brink and C.C. testified falsely and contrary to well established facts know to Michael Rakaczewski. Rakaczewski provided no discovery to the defense regarding any of the issues complained of that amount to substantial credibility  challenges. Had Rakaczewski properly informed defendant's jury of facts known to him that materially conflict with testimony elicited at trial, the outcome would have been different.

The evidence that was deliberately omitted was evidence of such significance that the fact it was not heard by the jury constituted a miscarriage of justice. Because this was a jury trial, as opposed to a bench trial, an objective analysis of the impact the omitted evidence would have on a juror is key, not whether this court can conjure some theory to reject it.

Defendant's due process rights are violated and his right to a fair trial infringed whenever he is not given all of the discoverable material evidence in advance of trial, regardless of his particular knowledge." Com. v. Hanford, 937 A.2d 1094, 2007 (Monroe County CCP No. 810 CR 2004).

No evidence exists that Rakaczewski provided the defense ANY impeachment evidence, to any of his witnesses, prior to trial. Rakaczewski was served with a Civil Rights law suit naming him as a defendant and included was a plethora of exhibits and  documents. This law suit was verified in Federal Court subject to penalties of perjury; as such, the averments therein are classified as judicial admissions. (Pa.R.Evid. No. 803(25); Hanford@1098) The question becomes whether the disparities between the facts in the complaint and the claims elicited from the complainant at trial were substantial enough to constitute impeachment evidence. Such evidence is material "if the omitted evidence created a reasonable doubt that did not otherwise exist ..." Com. v. Moose, 529 Pa. 218, 1992, quoting U.S. v. Agurs, 427 U.S. 97, 1976.

This evidence was subject to disclosure, by Rakaczewski, as it was "material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 1963. While Brady does not cover evidence the defense knew of, Pa.R.Crim.P. No. 573 requires disclosure of all material evidence. By not disclosing the omitted evidence the defense was unable to prepare for the introduction of testimony that is contradicted by the plethora of evidence Rakaczewski deliberately omitted.

Rule 573 requires disclosure of all material evidence known to Rakaczewski, which he refused to comply with. By doing this, the defense was unable to anticipate the perjury elicited by Rakaczewski at trial. This handicapped the defense and obstructed its ability to strategize how to confront this misconduct prior to trial. Had the defense known that Rakaczewski intended to elicit, rely on and pursue perjury at trial, the defense strategy would have been different. Under our system of judicial administration and the ethical duties imposed on prosecutors litigating criminal cases in our courts it would be unprecedented to hold  the defense to the burden of anticipating fraud and perjury.

The omitted evidence of C.C.,'s corroborated statements prior to trial prove that no untoward conduct occurred - for years - until her mother sought to retaliate against the defendant due to his contentious litigiousness. The omitted evidence of Brink's DNA inculpating a direct family member and the suborned perjury of the birthmark casts ALL of her claims as the perjury it has been since 1997. This material and substantive evidence can not be dismissed as being inconsequential in the outcome of this trial. This evidence was, and is, of such significance that the fact that it was not heard by the jury constituted a miscarriage of justice.

Presentence Investigation Report Challenges

At sentencing, held on October 7, 2016, defendant presented this court with a number of inaccuracies in the PSI report which challenged its reliability for sentencing purposes, and highlighted that potential parole and prison reviews rely on the PSI; therefore, its accuracy is of great importance. However, this court abused its discretion by refusing to direct that corrections be made as required pursuant to Pa.R.Crim.P. No. 703(B).

Notwithstanding the foregoing Michael Rakaczewski was required to provide the PSI preparer with all and any mitigating circumstances known to him, pursuant to Rule 3.8(d) of the Rules of Professional Conduct, yet he refused to do so. The deliberate omission of facts known to Rakaczewski rendered the PSI and any sentence based on it unreliable. While defendant anticipated Rakaczewski's fraud, lack of ethics and malevolent conduct, he took pains to attempt to put such facts before the court; however, this court refused to direct that the PSI be corrected to include the mitigating circumstances and ignored them in their entirety as the sentence meted adopted the PSI's suggestion and even expanded it. Clearly, nothing was going to dissuade this court from imposing an excessive sentence to garner media attention and to assuage the retaliatory animus that pervades against the innocent defendant.

In erroneously adopting prison misconduct reports as "aggravating circumstances" this court violates the double jeopardy clause by punishing defendant again for infractions that were "proven" on a mere preponderance of evidence standard, if that, for conduct such as "contraband" (first year law school study guides, legal work and credit cards of the defendant that the mailroom didn't remove from his mail) or "refusing to obey order" (declining to double cell in the RHU after guards intentionally housed defendant with a known to be dangerous prisoner or celling with a chain smoker) or "destroying state property" (for a mattress that got wet when a faulty toilet overflowed) or even "unauthorized practice of the law" (when the Commonwealth Court directed security staff to return legal documents to defendant so that an appeal for Joel Sandler could be perfected). This court's reliance on the PSI is so flawed as to render any sentence premised thereon to be erroneous on its face.

Proportionality of the Sentence

The sentence meted was so manifestly excessive as to shock one's conscience as it relies on alleged misdemeanor conduct that was, even if true, exaggerated to obtain felony convictions. No claims of violence, physical injury, actual molestation, threats, intimidation, forcible compulsion, or even property damage was made. Here you have R.V. claiming (per Michael Rakaczewski) numerous instances of digital masturbation yet she supposedly complained once - and then admitted she lied. C.C. claims numerous instances of cunnilingus - yet never complained - if we are to believe her story. Evidence of both girl's normal adjustment to life is plainly available. It is only until some psychopath convinces them they were "abused" is there an issue.

No analysis of the gravity of the actual alleged conduct - "touching" - was made, the alleged protection of the public or even the alleged rehabilitative needs of the defendant. The sentence meted amounts to a life sentence for supposed "touching". Defendant would be nearly ninety (90) years old before even becoming eligible for parole. Because defendant's father died at 55 and his mother just passed at 71 such factors plainly put the sentence meted as outrageous from a life expectancy perspective. This court disregarded not only the nature of the claimed circumstances but ignored all the unexplored evidence that support inferences that no crimes occurred to C.C. and R.V.'s mother admits R.V is a liar.

Thus,  even if true, the "rehabilitative needs" are easily accomplished by declining to reside with economically struggling women with female offspring that are easily manipulated into claiming conduct that never occurred. C.C. has been kidnapped to Hawaii and living under grossly suspect conditions and R.V. is an adult with her own set of problems and paranoias. Danielle Brink is still lying for her relative to cover for her years of fraud and perjury. This Court's sentencing is grossly disproportionate to the claimed "touching".

If all the claims are taken to be true the conduct alleged only becomes "bad" when Catherine Tsang needed to retaliate against defendant and R.V. sought attention; otherwise, based on their own claims, they had nothing to complain about. Lynott and Rakaczewski have made every man who ever comes into these girls' lives subject to retaliatory claims of abuse.

Title 42§9721(b) constrains a sentencing court's discretion in that it requires that any sentence imposed be "consistent with the protection of the public, the gravity of the offense ... and the  rehabilitative needs of the defendant." A sentence that disproportionately punishes a defendant in excess of what is necessary to achieve consistency with the section 9721(b) factors violates the express terms of §9721(b). Certainly consistency with §9721(b) factors does not require strict proportionality in sentencing, and the nonquantifiable nature of the factors considered would not permit such a rule in any event. However, a sentence that is clearly excessively disproportionate is, by definition, inconsistent with "the protection of the public, the gravity of the offense ... and the rehabilitation needs of the defendant. Accord Com. v. Williams, 69 A.3d 735, 2013.

Here, there was no sentencing individualization that was distinguishable from arbitrary justice. The sentence meted was the product of partiality, prejudice, bias or ill will. Real murderers get less time in Monroe County. Apparently "touching" is more severe than murder, which of course is patently absurd. Charles Derr "accidentally" choked his friend to death and got a 2-4 year sentence; however,  Charlie Derr didn't have DNA evidence of his actual innocence from a  false conviction that implicates the propriety of "justice" here in Monroe County. Hector Suarez was convicted of "touching and "licking" a minor's vagina but got only 3-10 years. Jerry Sandusky with 10 (ten) victims got less time.

Additionally, this court sentenced the defendant to pay the costs of the proceedings while knowing that he has no ability to pay as he's had to proceed in forma pauperis due to this court's refusal to grant bail nor release on Rule 600.

Bad acts vis a vis "sufficient evidence"

This Court and Rakaczewski rely on the oft repeated, yet erroneous, conclusion that "the uncorroborated testimony of the complaining witness is sufficient to convict a defendant of sexual offenses," citing Rakaczewski's inapposite case du jour, Com. v. Bishop, 742 A.2d 178, 2000.

The claim now is that, absent all the exculpatory evidence known to Rakaczewski and  deliberately omitted, the testimony of C.C. and R.V., standing alone was sufficient to establish the sexual offenses. Therefore, by logical extension, there was no "need" to introduce the alleged bad act perjury by Gentile and her cohort Viglione.

As is represented in defendant's post-sentence motion Rakaczewski lied to this court and the Superior Court regarding the design and purpose of his purported "prior bad acts" claims. Rakaczewski purported to "need" Gentile's perjury to offset challenges to the tainted Lynott's dearth of credibility; however, as the record now examples Lynott was not called to lie/testify by Rakaczewski's design, thus, there was no "need" to suborn more perjury from Brink and Viglione.

Of import here is the timing of the "bad acts" claims, as presented to the jury. Rakaczewski opened with his "bad acts" claims using the joke greeting card and the prior conviction. This "evidence" was not pursued "as needed" to rebut any defenses offered. Defendant was prejudiced right from the opening statement; thereby, depriving the Court of an opportunity to make rulings of admissibility of the "bad acts" claims during the prosecution's case-in-chief. This Court erred as a matter of law by not sua sponte directing a mistrial at the time of Rakaczewski's opening statement. This opening statement deprived the Court, and the defense, of the opportunity to object or modify rulings as circumstances develop or as the trial diverges from that which was anticipated. Accord Com. v. Hicks, 625 Pa. 90, 2013.

Right to Allocution

Rule of Criminal Procedure No. 704(c)(1) plainly provides for a right of allocution. Our courts have found that a trial court violated a defendant's "right to allocution at sentencing when it failed to inform him about his right to make a statement on his own behalf, and failed to allow him the opportunity to do so, such that resentencing was warranted." Com. v. Hardy, 99 A.3d 577, 2014.

Absence of a Colloquy at Bad Acts Hearing

The Superior Court raised the issue of a colloquy, per Pa.R.Crim.P. No. 121, in its bad acts decision, in such a way as to put this Court on notice as to its infirmity, which was not cured since.

The bad acts hearing was a "meaningful trial proceeding" as anticipated under Rule 121. Accord Com. v. Dowling, 959 A.2d 910, 2008. Defendant avers that absent a colloquy at this important juncture of the proceedings, any reliance on those proceedings is reversible error, and by extension, the trial held in reliance thereon must be found to be in error also. At the bad acts hearing defendant specifically sought of attorney Ventrella, some useful advice, only to be directed to "waive" the hearing. 

Endangering the Welfare of a Child - No "Course of Conduct" Found

The instructions rendered as to Count 6 in 1749 CR 2013 [N.T. 6/30/16 @87-88] were insufficient and the conviction must be vacated. The information charged defendant with Felony 3 conduct as engaging in a course of conduct; however, the jury did not find such. 

The Superior Court has held that “course of conduct” is an additional fact, which must be found by a jury. See Com. v. Powpow, 844 A.2d 13, 18 (Pa. Super. 2004) (stating that “‘[c]ourse of conduct’ is not an element of the offense of [EWOC], but it is an additional fact, a jury question, that impacts the grading of the offense.”). Therefore, “in order to be graded as a third-degree felony, the Commonwealth must allege in the information and present evidence at trial of the additional factor of ‘course of conduct,’ and the jury must be instructed on such.” Id. “[The trial court] cannot merely assume the jury [finds] this additional fact[,] when no evidence of it [is] presented at trial and no mention of it [is] made in the jury’s charge.” Id.

  Here, the jury instruction rendered does not match the information and the jury was not instructed to find a course of conduct; thereby, rendering this conviction invalid.

VERIFICATION

I, the undersigned, verify that the foregoing is true and correct, subject to the penalties under 18§4904 relating to unsworn falsifications to authorities.                                                                                                                                                                                           

Respectfully submitted,

November 14, 2016

Justin Corliss

4250 Manor Drive

Stroudsburg, PA 18360