AMENDED BRIEF IN SUPPORT OF POST VERDICT MOTIONS

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-verdict Motion

______________________________________/

AMENDED BRIEF IN SUPPORT OF ORAL POST VERDICT MOTIONS

            Pursuant to Pa.R.Crim.P. No. 704(b), Defendant, Justin Corliss, files this amended brief in support of post-verdict motions in good faith and based on following points and authorities.

Procedural History

1.      The Commonwealth charged Corliss with the following offenses based on claims of touching, advanced by his putative daughter, C.C. on July 10, 2013: attempt IDSI (18§901 & 18§3123); IDSI (18§3123); Incest (18§4302); Indecent assault (18§3126); Indecent exposure (18§3127); Endangering the welfare of children (18§4303); and Corruption of Minors (18§6301). These crimes were alleged to have occurred between 2009-2010. [1749 CR 2013]

2.      On August 13, 2013 the Commonwealth charged Corliss in a different case involving Rachel Vales: two counts of aggravated indecent assault (18§3125); indecent assault (18§3126); Endangering the welfare of children (18§4304) and corruption of minors (18§6301). These crimes were alleged to have occurred between 1995 and 1997. [2173 CR 2013]

3.      Corliss was initially represented by Robert Saurman.

4.      The Commonwealth moved for joinder and filed a bad acts notice concerning the conviction from 1998 involving Danielle Gentile and evidence from each case.

5.      Timely omnibus pretrial motions were filed seeking, in part, severance and asserting the affirmative defense of the statute of limitations. On January 6, 2014 Judge Williamson denied joinder and dismissed some charges that were time-barred. In denying joinder this court found such would unduly prejudice Corliss, that the jury would be inflamed if it were to hear two complainants alleging indecent contact and that it was not necessary to prove the evidence in each case by trying them together.

6.      Corliss moved to waive counsel and proceed pro se, filing an amended omnibus motion in each case, and moved to be released on nominal bail at the expiration of 180 days pursuant to Pa.R.Crim.P. No. 600.

7.      The Court granted pro se status but refused to comply with the mandates of Rule 600 in asserting that because Corliss defended, by filing pre-trial responses to Commonwealth motions, that the time it took the court to resolve the motions acts to deprive Corliss of his right to liberty prior to trial due to the Commonwealth's conduct of filing time-barred charges and for joinder.

8.      Although the Court addressed "bad acts" evidence in its January 6, 2014 opinion and order, the Commonwealth again moved to pursue bad acts, on February 24, 2014, by filing a motion in limine, in a dilatory manner, seven months after filing charges, indicating that they were not ready to commence trial.

9.      A hearing was held on March 18, 2014 wherein, absent any notice to Corliss, [N.T. 3/18/14 @11] three people were called to testify, namely, Catherine Tsang (C.C.'s mother), Karen Vales (R.V.'s mother) and Danielle Gentile Brink (the complainant from the 1997 case).

                Karen Vales testified that R.V. once claimed to have had a bad interaction with Corliss while en route to State Island, N.Y. but then admitted to making up her story. Vales conclusively establishes that no contact with R.V. could have existed after June of 1997.

                Catherine Tsang testified that she tried to compel C.C. to spend time with Corliss and admits that C.C. never made any claims of indecent contact until Corliss had called her school in 2013 to verify Tsang's fraud to Judge Higgins.

                Danielle Brink makes new claims of "rape" in 1997, new claims of going to Staten Island, N.Y. with Corliss and repeated claims from 1997 that were proven false by a jury in 1998. Brink also makes new claims of "tickling" while she was "11" years old, poignantly; however, she makes no reference to the evening time frame from 1997 that Corliss was falsely convicted of as exculpatory DNA evidence was erroneously withheld from the jury in 1998 which is relevant to this time frame.

10.  On June 17, 2014 the Court denied the introduction of "bad acts" into either case finding that such would be "extremely prejudicial" to Corliss, as it would inflame a jury into declaring  guilt based upon the other allegations. The Court also stated: "[e]vidence of this (prior) conviction, events surrounding the conviction, and the resulting sentence would severely prejudice the jury." [6/17/14 Op. @31] Finding that a "cautionary instruction would have little effect on a jury due to this evidence". [Id.]

11.  On July 14, 2014 Corliss filed a motion to dismiss pursuant to Rule 600 in C.C.'s case as 365 days had elapsed with no trial being commenced. This mandatory relief was refused, although the Commonwealth exercised no diligence to commence a trial.

12.  On July 17, 2014 the Commonwealth filed an interlocutory appeal to the Superior Court challenging the denial of bad acts.

13.  On July 14, 2015 the Superior Court reversed as to the introduction of bad acts, so as to provide the prosecution a better chance to convict. [Com. v. Corliss, Nos. 2091 & 2105 EDA 2014] Specifically, the Superior Court reversed the "order denying the Commonwealth's motion in limine to admit other bad acts evidence at Nos. 1749 and 2173 of 2013, and we remand for further proceedings." [Id. @18]

                The gist of the Superior Court's decision was to deal solely with alleged similar acts and viewed such claims as admissible^[1]; the opinion appears to authorize the Commonwealth to introduce evidence of the "conviction, events surrounding the conviction, and the resulting sentence" that the lower court expressly ruled "would severely prejudice the jury," [6/17/14 Op. @31] and that a "cautionary instruction would have little effect on a jury". [Id.] In appealing to the Superior Court Rakaczewski deliberately misled the court by omitting any reference to the plethora of evidence and corroborated statements of C.C. that established no untoward conduct by defendant in 2009-2010. In doing this the court was erroneously led to believe that this was merely a 'he said, she said' case. This unethical conduct resulted in a reversal of the lower court's proper ruling denying 'bad acts'. On appeal Rakaczewski averred that absent bad acts defendant would defend by attacking the complainant's credibility, the lack of prompt complaint and detective Lynott's complete dearth of credibility. The Superior Court reasoned that because defendant pled not guilty, the absence of physical evidence and the uncorroborated claims could lead a jury to acquit. [Op. Nos. 2091 & 2105 EDA 2014 @16-17], and thus "other bad acts evidence is necessary for the Commonwealth's prosecutions." Id. This created a new rule of law.

                The resulting effect of this convoluted pro-prosecution opinion amounted to an abrogation of defendant's constitutional right to defend. The prior conviction cloaked as "bad acts" was justified to preclude potential defenses. The Superior Court's position is clear, if the case is not prosecutable due to substantial infirmities a prior conviction can be used to impugn defendant's character and abrogate the constitutional presumption of innocence, to obtain a conviction at any cost, rendering the trial process unfair and an empty promise in 'seeking the truth'.

                Since Rakaczewski omitted all pre-complaint evidence that no inappropriate conduct occurred and the Superior Court effectively rendered defenses inoperable in light of the extreme prejudice exacted by impugning defendant's character, defendant's trial was an exercise in futility, premised solely on alleged propensity evidence alone.

                The prior conviction evidence did NOT establish the common scheme or plan exception, it acted to preclude defenses and assure an unfair playing field, in favor of conviction: thereby, eradicating the rule and converting it to an offensive counterstrike to offset evidentiary deficiencies to ensure a conviction.

14.  On January 27, 2016 Corliss filed his motions in limine and other relevant pre-trial relief.

15.  New counsel was hired, Robert Schwarz and Adam Bompadre, who effectively abandoned defendant and refused to defend. Or, they found the court's allowance of Rakaczewski's misconduct so hostile, coupled with the coached testimony and selective loss of memory so repugnant that any attempt to defend would be futile in light of the prior conviction claims made on opening that went uncorrected by this court. Although this does not excuse the refusal to defend.

16.  A planned four to five day trial was suspiciously truncated to a day and a half and on June 1, 2016 Corliss was convicted on all counts.

17.  At trial the Commonwealth introduced the testimony of five people, C.C., R.V., Karen Vales, Danielle Brink and Geralyn Viglione. No detectives, police, or other interviewers of either complainant were called by the Commonwealth, and C.C.'s mother Catherine Tsang, while available, was not called by Rakaczweski either.

MOTIONS FOR MISTRIAL

The Commonwealth violated Defendant's right to Due Process of Law. U.S. Const. Amends V, VI, VIII, XIV; Pa. Const. Art. I§9&10 (Pa.R.Crim.P.  No. 704(B))

CONSISTENT WITH ALL ARGUMENTS AND EVIDENCE RELATED HEREIN, DEFENDANT RELIES ON HIS MOTIONS SEEKING JUDICIAL NOTICE OF DOCUMENTS AND  EVIDENCE

A.     The knowing subornation of perjury from Danielle Gentile Brink and C.C.          

       

18.  The principles that govern here are well-established. The U.S. Supreme Court declared  more than seventy-five years ago that obtaining a conviction through the "deliberate deception of court and jury by the presentation of testimony known to be perjured" is "inconsistent with the rudimentary demands of justice". Mooney v. Holohan, 294 U.S. 103, 112, (1935). In case after case since Mooney, the Court has reaffirmed this bedrock principle. See, e.g. U.S. v. Agurs, 427 U.S. 97, 103, (1976); Giglio v. U.S., 405 U.S.150, 153 (1972); Napue v. Illinois, 300 U.S. 264, 269 (1959).

                Since at least 1935, it has been the established law of the United States that a conviction obtained through testimony the prosecutor knows to be false is repugnant to the Constitution. This is so because, in order to reduce the danger of false conviction, we rely on the prosecutor not to be simply a party in litigation whose sole  object is the conviction of the defendant before him. The prosecutor is an officer of the court whose duty is to present a forceful and truthful case to the jury, not win at any cost.

                In Napue the Court held that when the "reliability of a given witness may well be determinative of guilt or innocence", nondisclosure of evidence affecting credibility falls under the rule established in Brady v. Maryland, 373 U.S. 83, (1963) that suppression of material evidence justifies a new trial "irrespective of the good faith or bad faith of the prosecution".

                A new trial is required if "the false testimony could ... in any likelihood have affected the judgment of the jury ... " Napue, @271

                It is of no consequence that the falsehood bore upon the witness' credibility rather than directly upon the defendant's guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct when he knows to be false and elicit the truth. [Even if] the district attorney's silence was not the result of guile or desire to prejudice matters little, for its impact was the same, preventing as it did, a trial that could in any real sense be termed fair". Napue, 209-70.

                Prior statements of a witness that are both material and inconsistent with Danielle Gentile Brink's anticipated testimony fall within the Brady rule. However, Michael Rakaczewski provided no discovery relevant to Danielle Brink's anticipated testimony, and refused to correct her perjury at trial as he actually elicited it.

19.  When the government obtains a conviction through the knowing use of false testimony, it violates a defendant's due process rights. To obtain a new trial, the defendant must establish: (1) that there was false testimony; (2) that the government knew or should have known it was false; and (3) that there is a likelihood that the false testimony affected judgment of the jury.

B.     Danielle Gentile/Brink's Perjury at Trial

i.       Rakaczewski relied repeatedly on the content and wording of a greeting card given to Danielle Gentile in 1997 [N.T. 5/31/16 @18,46, 69, 236; N.T. 6/1/16 @46]. At trial Danielle claimed the circumstances of the greeting card were in response to sex. The following testimony was elicited by Rakaczewski:

"Q:What were the circumstances that he gave you that card?

A: This was after the first time we had sex. I had given him a  card expressing my love for him. It wasn't a sexual card, though; and then this is what he gave me with a rose." [N.T. 5/31/16 @45] (see attached  non-"sexual card")

The omitted truth:

a.      At the 'bad acts' hearing Rakaczewski elicited from Gentile/Brink the following:

"There was one incident where he had thrown a rock at me outside the store, and accidentally hit me in the face with it, knocked me out, made it up to me by buying me a chocolate bar and buying me a card. And actually the card was talking about sex and how a relationship was supposed to be." [N.T. 3/18/14 @32]

ii.     Danielle claims that indecent contact occurred during the "Monday road trips to New York" [N.T. 5/31/16 @35-36] and claims (to be consistent with Rachel Vales) that she would "pretend to be sleeping". ^[2][Id.]

The omitted truth:

a.      From the initiation of Danielle's claims in July of 1997 through to trial, no claim is ever made regarding going to New York/Staten Island, until Rakaczewski told her to make similar claims as Rachel Vales to support his "pattern" fraud.

b.      At trial in 1998 ADA Sherri Stephan elicited the following:

"Q: Did you ever do anything with Justin outside of work?

A: Well, we would go out like, because a couple times I would stay later, just to hang out or whatever, and we would go get something to eat, or like once or twice we went to the mall, or we went to Wal-Mart a lot because he had to get stuff for the animals". [N.T. 7/9/98 @12-13]

"Q: That was you and the defendant that went together?

A: Um hm." [Id.]

iii.   Danielle claims "I was pinned down", "he raped me", "he held me down", "his legs were holding my legs and my arms". [N.T. 5/31/16 @37] and "he pinned me down". [Id @38] No complainant made similar claims.

The omitted truth:

a.      On July 10, 1997 Pocono Township officer Robert Miller interviewed Danielle Gentile. His police report provides:

"Victim Reports No Force Was Used And She Considered The Sex To Be Consensual/Voluntary On Both Parts." [7/10/97 Police Report @2]

...

"Asked Her if Sex was Against Her Will She Said No" [Id@5]

     Officer Robert Miller verified same at trial. [N.T. 7/9/98 @111-116]

b.      On July 11, 1997 Pocono Township detective Thomas Lynott interviewed Danielle Gentile. His report provides:

"Gentile said that Corliss would lay her on the floor and have sex with her." [Id. @9]

c.      At the bad acts hearing Gentile/Brink claimed the contact "was a game. It was fun." [N.T. 3/18/14] "This was normal." [Id.]

iv.    Danielle claimed she said "Don't. Stop", "Why did you do that?" [N.T. 5/31/16 @38] and "I was uncomfortable with it, and I would say, "No. Stop."" No complainant made similar claims.

The omitted truth:

a.      Please refer to parts iii(a) &(b) above.

v.      Danielle claimed "Well, it happened (sex) twice in one day ... we went upstairs ... We were upstairs when it happened." When asked what kind of 'sex' she stated "Intercourse".^[3] [5/31/16 N.T. @42-43] No complainant made similar claims.

The omitted truth:

a.      On July 9, 1998 defendant pursued the uncontroverted testimony of Adam Davis, Fran Van Pelt, Harold Lesh, Michael Gelato, Scott Secrest, George Lata, and Michael Fagan. [N.T. 7/9/98 @201-247] establishing an alibi defense.

b.      On July 10, 1998 at the recommencement of trial defendant continued pursuing his alibi defense with the uncontroverted testimony of Thomas Gumina, Joseph Lociento and Paul Cooke.^[4] [7/10/98 N.T. @248-277]

c.      On July 10, 1998 defendant pursued the uncontroverted testimony of Michael Petock, Allison Wolf, Marsha Gulotta, Richard Stremme, Roxanne Roth and Rudy Sagnelli who testified as traffic witnesses who frequented defendant's pet store.

d.      This uncontroverted alibi testimony was sufficient to firmly establish Danielle Gentile's claims were false and impossible to have occurred. The jury properly acquitted defendant of the first two time frames alleging consensual sex. [N.T. 7/13/98]

vi.    Danielle admits that the underwear she wore, on the night she claimed to have had sex with defendant, contained "DNA", but that defendant allegedly ejaculated on a shirt and when asked:

"Q: So how can you explain how his (defendant's) semen would have possibly gotten in your underwear?"

A: I have no idea." [N.T. 5/31/16 @59-62]

In reference to the "unindicted co-ejaculator's" semen being tested she stated:

"A: I thought it was tested and it was inconclusive." [Id. @61]

No complainant made similar claims.

The omitted truth:

a.      On December 16, 1997 Gentile's underwear was tested and found to contain "seminal matter". [Wyoming Regional Laboratory, Incident #97-99] [attached]

b.      On March 9, 1998 the Greensburg Regional Laboratory issued report #G98-0979-G, which included results of DNA analysis of the "seminal matter" found in Gentile's underwear, her DNA and defendant's DNA. [attached]

c.      At #3 on page 2 the report conclusively provides that:

"Specimen K1 (Gentile's DNA) matches the DNA from Fractions F (DNA from white blood cells or epithelial cells as found in vaginal fluid) and M (DNA from spermatozoa) from specimen Q1 (stained section of Gentile's underwear)."

d.      A "match" is a conclusive determination that two items are found to have identical similarities. Here, Gentile's DNA "matches" the DNA profile of the "seminal matter"/"spermatozoa" found in her underwear.

e.      The Greensburg report, No. G98-0079-G, does not use the vague term "inconclusive" anywhere therein, due to the "match".

f.       The Commonwealth, nearly two months later, on April 29, 1998 fraudulently represented to the Court that the "results of the DNA analysis" were not yet produced.

g.      On May 5, 1998 an unauthorized DNA testing was completed, at the behest of the Commonwealth, in violation of a Court Order requiring samples to be turned over to the defense and the remaining samples were destroyed and not preserved thereby violating defendant's due process rights.

h.      Prior to the July 1998 trial a hearing was held wherein defense counsel properly sought independent testing, while being misled as to the actual results, and, not being told that there was now nothing left to test. Judge O'Brien was misled to believe the results were "inconclusive" and O'Brien failed to recognize the DNA's relevance to the last time frame claimed by Gentile that the DNA results are actually relevant to. No evidence was ever produced that Lenny Corbo, William Garris, or her father were tested.

i.       At trial, counsel Germano, moved to inform the jury about the 'unindicted co-ejaculator' evidence; however, ADA Stephan objected, lied to the Court by misrepresenting the evidence as "inconclusive", failed to inform the Court of the actual results of the "match" and how the prosecution acted to destroy the evidence thereby denying defendant of due process of law, all the while failing to point out that no one else was tested while relying on and eliciting testimony from Gentile that she was a "virgin". [N.T. 7/9/98 @60-62]

vii.  Gentile claims she had interactions with defendant when she "was 11" and that he would "tickle" her and eventually "he put hand up my shorts." [5/31/16 N.T. @29-33]. This was fraudulently interposed to establish Rakaczewski's "pattern" scheme, with R.V.

The omitted truth:

a.      Since July of 1997 through to trial in 1998 Gentile has never made these claims to police, prosecutors or jury.

viii.       Gentile repeats a perjurious claim of seeing a birthmark on defendant's penis in 1998, [N.T. 5/31/16 @43] although neither complainant makes this claim.

The omitted truth:

a.      This fraud was first perpetrated on defendant in 1998. Detective Tom Lynott interviewed defendant's girlfriend, Karen Vales, on July 3, 1998 (just before trial) and she is coerced into revealing this private information to him. Lynott then falsified his report stating "This is consistent with the description given by Danielle earlier in the investigation." Lynott then suborned perjury from Gentile to make her claim of seeing a mark - to control the outcome of the trial.^[5]

20.  Items i-viii above establish eight substantial issues of perjury suborned by Michael Rakaczewski from Danielle Brink to control the outcome of the trial by depriving defendant of due process of law by abrogating a fair trial.^[6] The alleged justification for this fraud was to undermine challenges to the tainted Tom Lynott's credibility; however, Rakaczewski deliberately refused to put Lynott on.^[7]

                The facts provided above were known to Rakaczewski and Brink and substantially establish not only that she testified falsely but that challenges to her credibility existed and were deliberately ignored by Rakaczewski.

                Had Rakaczewski properly informed the jury of this material and relevant evidence the likely impact would be the destruction of Gentile's overall credibility as well as the credibility of the prosecution itself, an impact beyond that of the false testimony alone.

21.  In assessing materiality, this Court should consider the prosecution's level of culpability in the use of the false testimony. A finding of bad faith on the part of the prosecution should increase the likelihood of a finding of materiality. Similarly, if Rakaczewski invoked the false testimony to persuade the jury to convict, it is more likely that the testimony is material. Rakaczewski's awareness of the falsity increases the likelihood that the falsity is material.

22.  Rakaczewski elicited Brink's known to be false testimony and relied on it to fabricate his "pattern" theory to defeat severance and deprive defendant of a fair trial. Rakaczewski relied on the false testimony as was amply demonstrated in his closing argument to the jury. [N.T. 6/1/16 @36-63]

                The prosecution gives the falsity a larger role if the prosecution not only presents false testimony but also invokes and emphasizes the false information in closing argument. The prosecutor's reliance makes is more likely that the false testimony will have an impact on the outcome.

                In Jenkins v. Artuz, 294 F.3d 234 (2nd Cir. 2002) the Court recognized "the heightened opportunity for prejudice where the prosecutor, by action or inaction, is complicit in the untruthful testimony".

23.  Here, Rakaczewski's awareness that Brink's testimony was false, for he suborned it to fabricate his "bad acts" pattern theory, makes the finding of materiality more likely and evidences the weakness in his case that lacked probable cause.

24.  Uncorrected false testimony violates the defendant's constitutional rights even if the defense was aware that the testimony was false. The prosecution has an obligation not to permit corruption of the process by presenting false testimony or allowing it to go uncorrected. Mere awareness of the falsity will not necessarily equip the defense to protect against the corruption of the trial.

                Defendant has certain constitutional rights that he could waive or forfeit, but he could not waive the freestanding ethical and constitutional obligation of the prosecutor as a representative of the government to protect the integrity of the court and the criminal justice system, as established in Mooney, supra., and Berger v. U.S., 295 U.S. 78, 1995.

                It is the sworn duty of the prosecutor to assure that the defendant has a fair and impartial trial.

25.  "Nowhere in the Constitution or in the Declaration of Independence, nor for that matter in the Federalist papers or in any other writing of the Founding Fathers, can one find a single utterance that could justify a decision by any oath-beholden servant of the law to look the other way when confronted by the real possibility of being complicit in the wrongful use of false evidence to secure a conviction in court." Com. of N. Mariana Isls. v. Bowie, 243 F.3d 1109 (9th Cir. 2001)

26.  Rakaczewski's duty to correct perjury by his witness is not discharged merely because the defense counsel knows, and the jury may figure out, that the testimony is false. Where the prosecutor knows that his witness has lied, he has a constitutional duty to correct the false impression of the facts. Napue, supra., @269

                In this case Rakaczewski sat silently as his witness lied, and sat silently as Brink evaded defense counsel's ineffective cross-examination. In closing Rakaczewski continued to do nothing to remedy the falsehoods, instead he relied on them.^[8]

27.  All perjury pollutes a trial, making it hard for jurors to see the truth. No attorney, not even Michael T. Rakaczewski, may knowingly present lies to a jury and then sit idly by and do nothing to correct it.

                A prosecutor has a special duty commensurate with a prosecutor's unique power, to assure that defendants receive fair trials. "It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate method to bring about one." Berger, supra., @88

                The burden to correct false testimony from prosecution witnesses lies on the government, not on the defendant.

28.  Proof of false testimony establishes that the trial process was corrupted to some degree. Plainly, when false testimony is introduced, it is likely that something suspicious and unfair is going on at trial.

            WHEREFORE, for the forgoing defendant avers that he is entitled to a mistrial and concurrently to have the convictions obtained to be vacated with prejudice.

C.    C.C.'s Perjury at Trial

29.  To obtain a new trial based on the Commonwealth's failure to disclose evidence affecting a witness's credibility, a defendant must demonstrate that the reliability of the witness may be determinative of the defendant's guilt or innocence. Com. v. Weiss, 604 Pa. 573, 2000.

i.        C.C. claimed defendant touched her "chest and vagina", "in my mom and his bedroom", he "stuck his hands down my pants", "he tried to put his penis in my mouth" and did, and put his mouth on her vagina. [N.T. 5/31/16 @93-95]

                        C.C. claimed this conduct occurred in 2009, 2010. [Id. @89]

a.      Defendant resided with C.C. from August 2008 until June 10, 2010. Thus, from August 2008-until July of 2013 no claim of indecent assault or inappropriate sexual conduct is made to ANY person whatsover.

b.      After separation from C.C.'s mother, Catherine, a number of legal filings were made in support and for a protection from abuse. During this time the following occurred:

-     C.C. was interviewed by at least  three (3) attorneys regarding her concerns/interests in custody and made angst driven pleas not to live with defendant because he "ignores" her and treats her badly. These attorneys, Daniel Lyons, Stephen Higgins and James Butz are each mandated reporters of suspected abuse and reported nothing. [Corliss v. Corliss, No. 596 DR 2010]

-     C.C. was interviewed by psychologist Patricia Cheslock who is also a mandated reporter and who similarly reported nothing. [9/10/10 letter] [attached]

-     C.C. did make claims of inappropriate touching by Frank Guskiewicz who was subsequently barred from being alone with C.C.. [8/12/10 Order, Corliss v. Corliss, No. 596 DR 2010] [attached]^[9]

-     C.C. made consistent and reliable statements to custody conciliators, her attorney, the courts, her mother and the psychologist that defendant spent no time with her and that he ignored her.

-     C.C. also wrote, vicariously through her mother, to defendant, stating :

"You always ignore me and never call me beautiful ...  Every time I asked you to sit with me or anything you said no cause (sic) you were busy." [6/20/10 email] [attached]

"I think your (sic) mean cause (sic) you always make fun of my weight and I hate when you do that and you always IGNORE ME ALWAYS IGNORE ME AND IM (sic) SICK OF IT!!!" [6/20/10 email] [attached]

" ... you only worked and even when you came home you said you had to work on your computer all night ... " [7/8/10 email] [attached]

-     C.C.'s mother Catherine Tsang corroborated C.C. stating :

"Outside of eating, changing or going to the bathroom, the only thing you do when you're home is sit in front of your computer ... " [3/1/10 letter] [attached]

"I had to push her constantly ... because she didn't want to be with you because you're so mean to her and simply ignore her existence." [6/11/10 email] [attached]

c.      When pressed at the preliminary hearing C.C. admitted :

"Well, he did ignore me. Like, mostly, he ignored me in the beginning, but toward the end he just ignored everyone." [N.T. 7/30/13 @19]

d.      C.C.'s mother Catherine Tsang has a documented pattern of fraudulent conduct involving her attempts to obtain spousal support, alimony, and child support which involved dispossessing defendant's first-time home buyer tax credit check, stealing funds from defendant's Federal Credit Union as ostensibly due her, she filed bogus 1099 Miscellaneous forms with the IRS to control support allotments and falsely represented her earnings for support purposes.

e.      C.C.'s mother Catherine Tsang made numerous fraudulent claims in Protection from Abuse petitions.

f.       C.C.'s mother Catherine Tsang had a pattern of non-compliance with mandatory notice to the custody court regarding her living arrangements, location and schooling of C.C. and ultimately kidnapped C.C. to Hawai'i.

g.      Ultimately Catherine Tsang's fraud in support was revealed and, now Judge, Higgins vacated a support order, when asked why she refused to appear at support master hearings, she lied, claiming C.C. was sick those days.

h.      Only when defendant moved to verify Catherine's fraud to Judge Higgins did the lies get advanced of inappropriate conduct by defendant, in July of 2013.

30.  ALL of the facts articulated above were known to Michael Rakaczewski, were relevant and material to C.C.'s credibility and were maliciously and deliberately omitted from trial so that the jury was deprived of the opportunity to fairly weigh C.C.'s testimony.

                Here, substantial, consistent, reliable and corroborated evidence exists that no indecent contact occurred between 2009-2010. The actual evidence is exculpatory and established an alibi defense. The truth, that Rakaczewski deliberately omitted, was determinative of defendant's innocence.

31.  Post-trial defendant filed, of record, requests that this court take judicial note of certain filings, documents and facts pursuant to Pa.R.Evid. No. 201. These uncontested requests were to aid this court in determining the materiality of evidence Rakaczewski deliberately omitted as being relevant to this filing and for sentencing issues.

                In summary, substantial evidence and consistent corroboration exists with statements made by C.C. and her mother Catherine Tsang that no untoward conduct occurred between C.C. and defendant in 2009-2010. Rakaczewski leaves this evidence uncontested and unrefuted for to do otherwise would be to render attorneys, custody conciliators, and a psychologist to be incompetent boobs who actually violated the law. Rakaczewski's unethical conduct is exampled through his refusal to ever address this evidence nor to present it to the jury as it renders C.C.'s testimony false.

                This deliberately omitted evidence is documentary evidence supporting innocence that standing alone is sufficient to grant a mistrial. Defendant avers that this omitted evidence compels a finding of actual innocence and the verdict obtained in its absence tainted and unreliable.

32.  Here, Michael T. Rakaczewski found it tactically advantageous to turn a blind eye to the manifest for malevolent disinformation that flowed from Rakaczewski's intent to mislead the jury and to avoid the truth.

                Rakaczewski failed in his clear duty under our Constitution to collect potentially exculpatory evidence, to prevent fraud upon the Court, and to elicit the truth. Accord Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1117 (9th Cir. 2001).

33.  When, as here, Michael Rakaczewski elicited and suborned perjury - from a child - and uses testimony that is false the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgement of the jury.

34.  The materiality of Catherine Tsang's conduct plainly goes to her motive to coerce the child C.C. to change her corroborated statements from 2010 and C.C.'s motive to testify falsely, since C.C. has to live with her mother.

                The thrust of Giglio v. U.S., 405 U.S. 150, 1972 and its progeny has been to ensure that the jury knows the facts that might motivate a witness in giving testimony, which could in any reasonable likelihood have affected the judgment of the jury.

35.  Though plainly made aware of the facts, and much more, Michael Rakaczewski chose to remain willfully ignorant of the facts and deliberately made certain that the jury did also.

36.  It is said that "it is the state that tries a man, and it is the state that must insure that the trial is fair." Moore v. Illinois, 408 U.S. 786, 1972.

37.  Michael Rakaczewski's complicity in obtaining a conviction through the use of perjured testimony violates due process. Accord Hysler v. Florida, 315 U.S. 411, 1942; Pyle v. Kansas, 317 U.S. 213, 1942 (granting relief to defendant who established that prosecution knowingly presented perjured testimony and suppressed favorable evidence).

38.  Michael Rakaczewski cannot avoid responsibility for the false testimony by willfully avoiding knowledge of facts. Accord Morris v. Ylst, 447 F.3d 735 (9th Cir. 2006). Plainly, due process is violated if the government uses perjured testimony "knowingly, recklessly, or negligently." U.S. v. Tierney, 947 F.2d 854 (8th Cir. 1981)

                Because C.C.'s trial testimony was wholly uncorroborated her prior statements were invaluable to prove her perjury - Rakaczewski knew this. As with Danielle Brink's perjury the likely impact of the omitted facts would have destroyed C.C.'s credibility and that of the prosecution itself.

39.  To reinforce Michael Rakaczewski's fraud, in his closing arguments he asked the jury - why would they lie? He asked:

"What motive does she have to lie?" [N.T. 6/1/16 @57]

         

          Why did Michael Rakaczewski lie is the appropriate question.

            WHEREFORE, for the forgoing, defendant avers that he entitled to the grant of a mistrial due to the malicious and deliberate prosecutorial misconduct of ADA Michael T. Rakaczewski and to have each conviction vacated with prejudice.

D.    MOTIONS FOR MISTRIAL

            The Commonwealth violated Defendant's right to Due Process of Law. U.S. Const. Amends V, VI, VIII, XIV; Pa. Const. Art. I§9&10 (Pa.R.Crim.P.  No. 704(B))

40.  Prosecutor Michael Rakaczewski has a vital interest in the outcome of this trial which necessitated his withdrawal due to conflict and a violation of the  Rules of Professional Conduct.

41.  Michael Rakaczewski remains a defendant in the civil rights action of Corliss v. Lynott, et al., 3:15-cv-01364 filed in the U.S. District Court in Scranton, PA and is currently on appeal in the Third Circuit Court of Appeals. Rakaczewski's fiduciary interest in the outcome of these criminal cases is substantial and demonstrably colored his conduct here resulting in the subornation of perjury, withholding of substantial impeachment evidence and coaching witnesses' testimony to conform to Rakaczewski's "pattern" scheme.

            WHEREFORE, defendant avers he is entitled to the grant of a mistrial due to Rakaczewski's financial interest, vital interest and malicious prosecutorial misconduct as exampled further herein.

42.  Michael  Rakaczewski pursued alleged "prior bad acts" for the purported purpose of establishing a common scheme or plan to "link" three widely disparate cases through the knowing use of suborned perjury by the willing prevaricator - Danielle Gentile Brink. However, in pursuit of this fraud Rakaczewski deliberately elicited claims and evidence that was so unfairly prejudicial that its inflammatory nature made its probative value de minimus.

43.  Rakaczewski relied repeatedly on the content and wording of a greeting card given to Danielle Gentile in 1997 [N.T. 5/31/16 @18,46, 69, 236; N.T. 6/1/16 @46] but ignored an equally inappropriate card written by Gentile in 1997. [Attached]

44.  Here, Rakaczewski's unethical design was to mislead the jury into believing that the card inferred that "sex" occurred between Gentile and the defendant. This was a reasonable strategy, were it not fraudulent.

                At the 'bad acts' hearing Rakaczewski elicited from Gentile/Brink the following:

"There was one incident where he had thrown a rock at me outside the store, and accidentally hit me in the face with it, knocked me out, made it up to me by buying me a chocolate bar and buying me a card. And actually the card was talking about sex and how this is how a relationship was supposed to be." [N.T. 3/18/14 @32]

                By unethically using the card out of context and not informing the jury of facts known to him the jury was misled to believe the card was evidence of a sexual relationship, when, in fact, it was nothing of the sort. This court was equally aware of Rakaczewski's fraudulent conduct but did nothing to cure its effect on the jury. By omitting Gentile's leading and suggestive card and evidence that Gentile was pursuing a relation with the defendant, but was spurned, Rakaczewski lied to the jury.

45.  The card and its contents met no element of any crime nor was it material to a purported "scheme or plan" as no evidence exists of similar cards given to Rachel or C.C.. The sole purpose of the improperly introduced card was to impugn defendant's character - conduct that is specifically barred by Pa.R.E. No. 404(b)(1) and was a design to deprive defendant of a fair trial and due process of law.

                No notice was given, regarding the card, as is required by Pa.R.E. No. 404(b)(3) and its use amounted to trial by surprise.

46.  Not content with simple fraud and suborned perjury Rakaczewski deviated from the pre-trial claims and exceeded the scope of "bad acts" to control the outcome of the trial. Specifically,  Rakaczewski sought, elicited and encouraged Danielle to make claims of "rape" and actual sexual intercourse, combined with claims of being "pinned" down, [N.T. 5/31/16 @37, 38, &43], and ejaculation of semen, [Id . @43 & 74] and seeing a birthmark on defendant's penis.^[10]

                Neither complainant, Rachel or C.C., have ever made similar claims and thus, to introduce such plainly exceeded the purported purpose of a "common scheme or plan", was not relevant to establishing the element of any crimes charged and had no probative values as it was designed solely to prejudice the defendant.

47.  The introduction of such non-germane claims so exceeded the scope of prior bad acts as to be outrageous and designed to goad defendant into moving for a mistrial, and to impermissibly impugn defendant's character.

48.  In a similar fact pattern a mistrial was granted in the Northampton County case of Com. v. Giamoni, CP 48 CR 2081, 2014. The child's claims were that Giamoni touched her chest. Pursuant to Pa.R.E. No. 404(b) Giamoni's daughter testified similarly; however, when she exceeded the scope by claiming Giamoni went further with her - a mistrial was granted and upheld on appeal. [Com. v. A.G., No. 476 EDA 2015]

49.  The introduction of the prior claims of Danielle Gentile produced the unconstitutional  effect of allowing the jury to find guilt of charged offenses by relying on facts found only by a preponderance of the evidence and were offered solely as proof of the propensity to commit sexual offenses. Pa.R.Evid. No. 403 is a trial oriented rule and sua sponte enforcement, consistent with this court's 6/17/14 Opinion and Order, was anticipated. The Superior Court's order did not remove from this court the discretion, at trial, to modify rulings as circumstances develop or as the evidence at trial diverges from that which was anticipated. Com. v. Hicks, 625 Pa. 90, 2013 (originating from Monroe County).

50.  No limiting or cautionary instruction was issued to insulate defendant from the prejudice derived from inferences of bad character to be drawn therefrom to outweigh the prejudicial effect. This Court deemed such would have little effect due to its extreme prejudice. [Op. 6/17/14 @31]

51.  The introduction of these claims  and unrelated inferences to conduct the defendant was not on trial for were unwarranted, was prejudicial and outside the scope and design of the prior bad acts evidentiary theory advanced which resulted in an unfair trial, violated due process of law and resulted in undue prejudice.

52.  Upon opening statements Michael Rakaczewski opened with the greeting card^[11] [5/31/16 N.T. @18], and evidence of the 1997 case: "the police are there and they surround him", (this bogus claim is totally false and intentionally inflammatory) [Id. @19] "It's Pocono Township Police" [Id.], "ultimately, is convicted", [Id. @20], "At the time of trial" [Id.], "the Defendant ends up getting convicted and he goes to jail" ... "he's out of the picture for about ten years or so". [Id.]

                To reinforce this prejudicial evidence Rakaczewski elicits it - repeatedly from each of his five witnesses.^[12]

53.  As referenced above, the prejudicial impact was designed to, and did, control the outcome of the trial. These were not mere passing references but the cornerstone of Rakaczewski's unethical conduct designed to convict at all costs.

                This repeated reference to the prior criminal conviction violates Pa.R.E. No. 404(b), exceeds the "bad acts" fraud perpetrated by Rakaczewski to this Court and the Superior Court, and served no legitimate purpose, the design of which was to deprive defendant of a fair trial, by precluding defenses with such extremely prejudicial references to the prior conviction.

                The Pennsylvania Supreme Court has recognized "the tendency of a normal juror to accept testimony of a prior conviction as a basis for finding a predisposition to commit crime." Com. v. Bighum, 452 Pa. 554, 1973.

54.  From the opening statement and upon direct Michael Rakaczewski found it advantageous to not just elicit new perjury to fraudulently support his "bad acts" scheme, but took that as license to fully and repeatedly inform the jury of the false conviction obtained in 1998 while knowing and having a duty to know that such testimony is unduly prejudicial and barred. The intent was to elicit improper character evidence for the purpose of showing a propensity or disposition to commit crimes. The evidence of defendant's prior false conviction was immaterial to any issue in these cases and was highly prejudicial. The arrest, conviction, and prison time was referred to repeatedly.

                This Court barred such as "extremely prejudicial" [Op. 6/7/14 @31] which does not appear to have been reversed by the Superior Court.

55.  In Michelson v. U.S., 335 U.S. 469, 1948 Justice Jackson wrote:

"The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge."

                See also Com. v. Spruill, 480 Pa. 601, 1978 (evidence of other crimes is probably only equaled by a confession in its prejudicial impact on jury).

56.  While this court was manipulated by Michael Rakaczewski to entertain a "pattern" scheme to allow Danielle Brink to commit more perjury this "bad acts" fraud in no way justified the expression to the jury of a prior conviction. The evidence of some alleged similar act was deemed admissible; however, there is no authorization for the prosecutor to state, elicit and reinforce testimony of a 'conviction' nor that defendant had spent ten years in prison.

                See U.S. v. Vallie, 284 F.3d 917 (8th Cir. 2002) (prosecutor's question about defendant's prior offense was improper because it was not related to charged crime); and U.S. v. Becton, 601 F.3d 588 (D.C. Cir. 2010) (prosecutor's reference to defendant's previous incarceration improper.)

57.  This Court's 'bad acts' order and the associated Superior Court decision did not authorize Michael Rakaczewski to state, elicit, nor refer to defendant's prior conviction nor his imprisonment, the greeting card, claims of "rape", actual sexual intercourse, ejaculation of semen, being "pinned down", nor mentioning the supposed penile birthmark. In fact, no court was presented  with these claims prior to being ambushed with it at trial.

                This testimony had no relevance other than to plant the false idea that defendant was of bad character and had a propensity to commit crime.

                Our PA Supreme Court has stated:

"The purpose of [Rule 404(b)] is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually strip him of the presumption of innocence." Com. v. Spruill, 391 A.2d 1048, 1978.

                There are narrow exceptions; however, these "cannot be stretched in ways that effectively eradicate the rule." Com. v. Ross, 57 A.3d 85, 2012.

58.  Rakaczewski purported to pursue the 'common scheme or plan' exception to introduce Brink's new perjury and to defeat severance. However, this can be done only when two or more crimes are so related to each other that proof of one naturally tends to prove the others. Com. v. Bronshtein, 57 Pa. 460, 1997. The existence of a common scheme is relevant to establish any element of a crime "so long as it does not merely indicate the defendant's propensity to commit similar crimes." Id. There must also be a "close similarity between the assaults." Com. v. Elliot, 700 A.2d 1243, 1997.

59.  Additionally, because the defendant was known, no "unique signature" was adduced to establish identity. Ross, supra. Nor was any alleged conduct so unusual or distinctive as to be like signature. Com. v. Blady, 444 A.2d 670, 1982. In toto, no 'common scheme or plan' was actually pursued at trial as would have been anticipated.

60.  In summary the following was adduced at trial:

A.     Danielle Brink - actual intercourse, cunnilingus, tickling, rape, being 'pinned down', saying 'No', 'Stop', ejaculation and semen. Seeing a birthmark on penis and of a conviction and DNA evidence, and touching, ten years in prison and uncharged indecent assault at Karen Vales' house and new claims of contact en route to N.Y.

B.     C.C. - cunnilingus & fellatio, touching.

C.     Rachel Vales - digital masturbation, tickling, & contact en route to N.Y.

                Contrary to Rakaczewski's purported "common scheme or plan" fraud, what was actually introduced at trial meets no such purpose under Pa.R.E. No. 404. Additionally, because the bulk of the testimony elicited was tainted (as being knowingly false) the materiality is further  degraded.

61.  Recently, in Com. v. Bidwell, 2816 CR 2011 the Monroe County District Attorney similarly pursued an expanded use of "bad acts" to falsely convict. On appeal the Superior Court reversed and vacated the conviction because the trial court (Judge Higgins) abused its discretion in allowing the Commonwealth to introduce evidence of Bidwell's prior bad acts pursuant to Rule 404(b). The Court allowed testimony of prior deliveries of drugs but the record was devoid of any compelling evidence of Bidwell's intent to distribute methamphetamine. [Com. v. Bidwell, No.50 EDA 2011]

                Here, the same logic prevails. Rakaczewski introduced a plethora of completely unrelated claims that do not amount to a unique or signature act and tellingly formed no coherent "pattern, scheme or plan". The actual design was to unduly prejudice defendant.

                It was an abuse of discretion to allow Rakaczewski to introduce the unrelated and prejudicial claims and card evidence; thereby, a mistrial is warranted.

62.  Prior bad acts may not be admitted for the purpose of inviting the jury to conclude that the defendant is a person "of unsavory character" and thus inclined to have committed the crimes with which he is charged. Ross, supra. Rakaczewski did violate the principle and design of 'prior bad acts' to do exactly this - to impugn  defendant's character. What Rakaczewski did was tell the jury 'he's a criminal, he's been convicted of sexual crimes; therefore, ANY claim by ANY person must be deemed true'. By doing this Rakaczewski perpetuates an infinite number of convictions as ANY disgruntled, coerced or disillusioned person can make ANY sexual allegation and a conviction would be automatic, proof & evidence are unneeded.

                A mistrial should be granted.

63.  During trial Rakaczewski specifically elicited from Danielle Brink her perjured claim of seeing defendant's penis, [N.T. 5/31/16 @43] then reinforced it with Karen Vales. [Id @143]

                This highly prejudicial information had no relevance to any claims lodged against defendant, the probative value (were there one) was not established and this claim of a birthmark was not crimen falsi evidence and, thus, had no legitimate purpose in this  trial.

64.  Evidence of Rakaczewski's ongoing misconduct is reflected by his deliberate elicitation of this fraud by Brink while knowing that Tom Lynott had falsified his police report in 1998 by fraudulently claiming that Gentile had previously made a similar claim AFTER learning of it exclusively from Karen Vales. This substantial credibility challenge to Brink was required to be exposed to the jury - by Rakaczewski - but he unethically refused to do so.

                A mistrial should be granted.

E.     Prejudicial Comments and Undue Prejudice From Unwarranted References

65.  On January 27, 2016 defendant filed his "Motions in Limine and other Relevant Pre-Trial Relief". At issue 'V' therein is a motion To Bar the Term "Victim".

66.  On February 5, 2016 this Court "Granted" the motion and directed "that the victim (sic) shall, whenever possible, be referred to as the "alleged victim" or the "complainant". It would appear that this Court's 'tounge-in-cheek' reliance on the term 'victim' in its own order was to example the lack of seriousness and prejudgment; however, the Order was made.

67.  In direct violation of this Court's Order Michael Rakaczewski disregarded same and used the term 'victim' in his opening [N.T. 5/31/16 @23] and repeatedly in his closing [6/1/16 @37-53].

                To example Rakaczewski's collusion with conflicted defense attorney Bompadre, Bompadre ignores this Court's order also, twice in opening and three times in his closing.

                Not to be left out of this prejudicial influence, this Court uses the term 'victim' and/or 'alleged victim' interchangeably in giving instructions to the jury. [N.T. 6/1/16 @73-100]. In total, the term 'victim' appears thirty eight (38) times in the transcript, sometimes outside of the jury's earshot, other times not. This Court never really cared due to bias.

68.  The repeated use of this erroneous term was designed to convey to the jury that crimes were committed and that someone other than the Commonwealth was an aggrieved party so as to convey sympathy for the complainants. The prejudicial impact is exacerbated when used by the Court as this conveys to the jury this Court's bias, predisposition and directs a verdict in conformance therewith.

69.  During cross-examination of defendant, Michael Rakaczewski deliberately ignored well established testimony and facts from defendant's 1998 trial to falsely portray the defendant as not credible. Having great difficulty doing so, Rakaczewski stated:

"Well what I'm saying sir is actually that you are a liar. That's what I'm saying." [N.T. 5/31/16 @258]

70.  In addition to characterizing defendant's testimony as unresponsive or misleading in closing arguments the ultimate effect was to disparage defendant's credibility through Rakaczewski's personal animus and biased opinions of the innocent defendant in such a way as to impart to the jury that the Monroe County District's Attorney endorses Rakaczewski's opinion. Since this went uncorrected by this Court it could have been seen by the jury as a subtle endorsement.

71.  Plainly, due process prohibits the prosecutor from expressing his personal opinions about the defendant's guilt or credibility. See U.S. v. Woods, 710 F.3d 195 (4th Cir. 2013) (prosecutor's statement that defendant had lied under oath improper as being inflammatory); U.S. v. Nunez, 532 F.3d 645, (7th Cir. 2008) (prosecutor's statement that defendant's testimony was "patently false" and "unresponsive to the question" was improper personal opinion); and U.S. v. Wright, 625 F.3d 583 (9th Cir. 2010).

72.  The trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. In making its decision, the court must discern whether misconduct or prejudicial error actually occurred, and if so, ... assess the degree of any resulting prejudice. The remedy of a mistrial is an extreme remedy required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial tribunal. Com. v. Judy, 978 A.2d 1015, 2009.

73.  Of paramount concern was defendant's right to retain primary control over these actions to be followed in the event of prosecutorial or judicial error in order to protect his valued right to have his trial completed in a particular tribunal. U.S. v. Dinitz, 424 U.S. 600, 1976.

               Here, defendant was faced with a "Hobson's Choice", request a mistrial or continue with the trial tainted by prosecutorial error and misconduct. Rule 704(b) recognizes this conundrum and provides a vehicle to address same after jeopardy has attached.

            WHEREFORE, due to the cumulative, pervasive and grossly prejudicial conduct of Michael T. Rakaczewski, a mistrial is warranted under these extremely prejudicial circumstances as defendant's right to a fair trial was irreconcilably violated and the verdict reached is unreliable.

F.     Motion for Judgment of Acquittal and/or Arrest of Judgment

            The Commonwealth Presented Insufficient Evidence to Prove Beyond a Reasonable Doubt the Crimes Alleged. U.S. Const. Amends. V, VI, VIII, XIV; Pa. Const. Art. I§9. (PA.R.Crim.P. No. 606(A)(5), 607(A)(1)&(2) & 704(B))

Case No. 2173 CR

74.  At trial, held on May 31, 2016 to June 1, 2016 the Commonwealth presented testimony by Rachel Vales that she went to Staten Island with defendant and that during this trip defendant put his hand down her pants and touched her vagina while she pretended to be asleep. [5/31/2016 @118], her mother Karen referred directly to such a trip [Id. @141] and Rakaczewski relies on these claims in his closing [N.T. @42], to support a count of 18§3125.^[13]

75.  This testimony was designed to establish one count of aggravated indecent assault; however, the locus of the alleged crime is not  established to any degree of certainty as occurring within the territorial boundaries of the Commonwealth of Pennsylvania.^[14]

76.  No instructions were given regarding the element of jurisdiction for this alleged crime. [18§§102 & 103]^[15]

77.  Absent testimony establishing conduct occurring in Pennsylvania, this count fails. Accord Com. v. Seiders, 11 A.3d 495, 2010.

78.  Even crediting the testimony, based on distances to and from Staten Island, NY (a distance of 102 miles one way), the evidence only establishes a twenty percent (20%) chance of a crime occurring in Pennsylvania. This is insufficient to meet the beyond a reasonable doubt standard.

                In Com. v. Brown, 551 Pa. 465, 1998, evidence established penetration of the anus by a penis or a broom handle. This fifty percent (50%) chance was insufficient to establish rape which does not have an element of a foreign object. Thus, if 50% is not sufficient to establish reasonable doubt, 20% surely is inadequate here.

            WHEREFORE, defendant is entitled to a judgment of acquittal and/or an arrest of judgment as the evidence was insufficient to meet jurisdiction.

79.  Both counts of aggravated indecent assault (AIA) were alleged to have occurred prior to July 1997. The statute of limitations for this crime was five (5) years at that time; wherein, repose attached in July of 2002.

                The limitations period was amended on August 27, 2002; however, after a term of limitations has expired, a newly created and longer statute of limitations, or the enactment of an extended period, can not serve to revive the prior cause. Com v. Harvey, 542 A.2d 1027, 1988. The limitations period that expired "shall not be extended by order, rule or otherwise". [42§5504(a)] This was an issue for the jury to determine, but expressly waived by the Commonwealth.

80.  Negation of the affirmative defense of the statute of limitations is a duty in the Commonwealth [18§103] by the prosecution and must be established beyond a reasonable doubt. [18§108] [FN15] ^[16] Defendant repeatedly argued these charges were time-barred, as recently as January 27, 2016; thus, the statute of limitations was clearly disputed in relation to these time-barred charges.

81.  No testimony of  record exists to support the Commonwealth established that the limitations period did not expire in July of 2002 nor that a statutory exception applies. The instructions given the jury do not direct a finding for any exception nor was the jury given legal guidance on limitations by the Court. As such, required determinations as to this element of the crimes was not met. Accord Com. v. Bethlehem, 570 A.2d 563, 1989. The rule of lenity applies in favor of defendant.

            WHEREFORE, defendant is entitled to an arrest of judgment and/or a judgment of acquittal as the requisite element of negation of the statute of limitations was not put before the jury and no determination was made thereon by the jury; thus, the rule of lenity applies.

82.  At trial Rachel Vales solely made claims of "touching". This claim of "touching" was the foundation of Rakaczewski's "pattern" claims as other complainants made identical claims. In fact "touch" was stated 10 times, [N.T. 5/31/16 @205], "touched" 8 times [Id.] and "touching" 17 times. [Id.] Rachel Vales does not use the term "insert" nor "penetration".

83.  Indecent contact is defined as:

"Any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person." [18§3101]^[17]

84.  The crime of aggravated indecent assault (AIA) does not contain an element of "indecent contact". Axiomatically, this crime encompasses conduct not intended for arousal or gratifying sexual desire. [18§3125]^[18] Accord Com. v. Adams, 39 A.2d 310, 2012. In Adams the complainant was bound, being assaulted and threatened with a gun to provide information. During this ordeal one co-defendant inserted his fingers into her vagina for the purpose of humiliation, degradation and punishment; but, not for arousal or to gratify sexual desire.  Adams, properly establishes the type of conduct our Legislature intended 18§3125 to meet.

85.  In Com. v. Kelley, 509 Pa. 179, 2002 the court properly found that "forced digital penetration of the vagina constitutes indecent assault", by tacitly recognizing that Kelley's intent was to arouse or gratify sexual desire.

                Other courts have recently, post-Kelley, similarly held that digital insertion (i.e. "touching") of the vagina constitutes indecent assault. See Com. v. Charlton, 902 A.2d 554, 2006; Com. v. Robinson, 931 A.2d 15, 2007; and Com. v. Smith, 863 A.2d 1272, 2004. [See Footnote 16, supra.]

86.  Application of the rule of lenity (codified at 1 Pa.C.S. §1923(b)(1)) dictates that the "touching", averred at trial, not be expanded beyond the scope of "indecent contact" to justify crimes our Legislature did not anticipate.

                The U.S. Supreme Court, in Dunn v. U.S., 442 U.S. 100, 1979 explained that the rule of lenity is "not merely a convenient maxim of statutory construction" but rather, "it is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited".

                The trial testimony establishes indecent assault only as no other crime has an element of indecent contact (i.e. touching) and indecent assault is not a lesser included offense of AIA as the requisite elements are distinct. Com. v. Allen, 856 A.2d 1251, 2004. AIA has no element of indecent contact.

                A defendant's due process rights are violated when his conviction is affirmed on an offense  that he was not charged with and that was not presented to the jury." Dunn, supra. Here Defendant was charged with indecent assault (though dismissed as time-barred) but convicted of AIA that does not have an element of indecent contact.

                Here, no evidence of "penetration" for the purpose other than to arouse or gratify sexual desire exists; therefore, there exists no evidence to support a conviction for aggravated indecent assault.

            WHEREFORE, defendant is entitled to an arrest of judgment and/or a judgment of acquittal on both counts of aggravated indecent assault as no evidence exists to support these convictions.

Case No. 1749 CR 2013

87.  C.C. claimed that all conduct complained of occurred  "in my mom and his bedroom." [N.T. 5/31/2016 @93]

88.  This testimony does not meet the elements of indecent exposure [18§3127] as this crime requires a public place where "others" would be offended, affronted or alarmed. (See jury instruction in this matter [6/1/16 N.T. @84]) In Com v. Dewalt, 752 A.2d 915, 2000 the court found evidence insufficient to meet indecent exposure as no 'public place' was testified to. Here, no evidence that "exposure" caused injury by way of affronting or alarming beyond that foisted by alleged act of touching or fellatio. Accord Com. v. Whetstine, 496 A.2d 777, 1985.

            WHEREFORE, defendant is entitled to an arrest of judgment and/or a judgment of acquittal on the conviction for indecent exposure as no evidence exists to support this crime.

89.  Defendant was charged with four crimes that have a statute of limitations period of two (2) years; indecent assault 18§3126, indecent exposure 18§3127, endangering the welfare of children 18§4304, and corruption of minors 18§6301 against C.C. [42§5552(a)]

90.  The testimony of trial adduces that the defendant resided with the complainant between "2009, 2010," [5/31/16 N.T. @39] until "June 10th of 2010", [Id@212] Therefore, the two year limitations period within which to prosecute these crimes expired on June 10, 2012.

91.  Negation of the affirmative defense of the statute of limitations is a duty of the Commonwealth [18§103] by the prosecution and must be established beyond a reasonable doubt. [18§108] [FN15 & FN16] Defendant raised this affirmative defense in his January 27, 2016 Limine motion; thus, the statute of limitations was clearly disputed here. This was clearly a matter for the jury as limitations periods that expired "shall not be extended by order, rule or otherwise". [42§5504(a)]

92.  No testimony of record exists to support that the Commonwealth established that the limitations period did not expire in 2012 nor that a statutory exception applies. The instructions given the jury do not direct a finding for any exception nor was the jury given legal guidance on limitations by the Court. As such, required determinations as to this element of these crimes was not met and the rule of lenity dictates that the charges/conviction be vacated in defendant's favor. Accord Com. v. Bethlehem, 570 A.2d 563, 1989. The rule of lenity dictates that these facts be construed in defendant's favor. Id.

            WHEREFORE, defendant is entitled to an arrest of judgment and/or  a judgment of acquittal  on each of these crimes as the requisite element of the statute of limitations was not put before the jury, thus, no determination was made thereon by the jury.

93.  In this case defendant was found guilty of "attempt" involuntary deviate sexual intercourse, [18§§901, 3123], (IDSI).

94.  There can be no "attempt" to commit IDSI for the essence of a criminal attempt is Defendant's intention to cause the prescribed result, it follows that there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended.

                IDSI  required no proof of intent to cause the prescribed result, specifically, IDSI requires that one "engages" in IDSI. There is no element of "intent", thus an "attempt" fails.

95.  The evidence of record, as testified to by C.C., is that, she now claims, that defendant's penis did go into her mouth.^[19] [5/31/16 N.T. @95] Thus, there is no evidence of record to support an "attempt", even were it cognizable. C.C. testified to a completed crime of indecent assault (fellatio), she made no claims regarding use of a "foreign object" or an "animal" nor is there any evidence supporting "forcible compulsion" as anticipated by our legislature. [18§3123] Additionally, no statute describes fellatio as "sexual intercourse" with an animal or foreign object, and IDSI does not contain an element of indecent contact.

96.  Defendant was on notice to defend against an "attempt" IDSI; yet, no such crime was made out at trial.

            WHEREFORE, defendant is entitled to an arrest of judgment and/or judgment of acquittal as to the "attempt" IDSI conviction obtained as no evidence exists to support such. The fellatio testified to is a crime defendant was not charged with; therefore, this court is without jurisdiction to convict him of it. Accord Com. v. Serrano, 61 A.3d 279, 2013.

97.  Defendant was found guilty of three crimes that have a requisite element of "intercourse", IDSI 18§3123, attempt IDSI 18§§901, 3123, and incest 18§4302.

98.  The evidence of record adduces that C.C. claimed defendant put his penis in her mouth [5/31/16 N.T. @95] and "put his mouth on" her "vagina". [Id] This testimony amounts to fellatio and cunnilingus.

                Axiomatically, IDSI requires a foreign object or an animal-which was not adduced here; thereby, these convictions fail. Our General Assembly plainly differentiates between "sexual intercourse", "fellatio" and "cunnilingus". Accord 18§6312(g) (prohibited sexual act).

99.  Some outdated Superior Court panels have erroneously construed fellatio and cunnilingus to be "sexual intercourse" based on antiquated interpretations largely premised on Com v. Wescott, 523 A.3d 1140, 1983, that relied on the Model Penal Code to fashion an interpretation to fit a non-statutory design. This interpretation was rejected by the PA Supreme Court in Com. v. Kelley, 569 Pa. 179, 2002. Evidence that our General Assembly has never adopted the Wescott dicta is found in the repeated amendments to 18§6312. Plainly, if our Legislature thought fellatio or cunnilingus amounted to "sexual intercourse" a mere stroke of the pen would be sufficient enough to do so.

100.      Our General Assembly has never defined "sexual intercourse" to say "penetrates the mouth", "or a person's tongue penetrates the sexual organ of a female" (rendering an erroneous jury instruction here) [6/1/16 N.T. @80].^[20] The definition of deviate sexual intercourse is set forth at 18§3101, as well as "sexual intercourse". This court is plainly expanding "animal" and "foreign object" to mean anything. [IDSI] And, ignoring the Legislature's definition for "sexual intercourse" by erroneously finding as superfluous the language of "emission is not required".^[21] Plainly, a tongue can not "emit" semen. To accept the ridiculous interpretation of this Court would be to find a "wet willie" ( a wet finger put into an ear or a navel ) to be "sexual intercourse" and if so, French kissing would fit the same erroneous interpretation; thereby, rendering the interpreted definitions so vague as to violate due process, due to obvious absurdities.^[22]

101.      As no evidence exists that defendant's penis penetrated C.C.'s vagina ("os") or anus to meet the statutory definition of "sexual intercourse" (accord Com. v. Brown, 551 Pa. 465, 1996) and no animal or foreign object was alleged, there simply is no evidence to support this element of either of these three crimes. ^[23]

102.      Here, C.C. claimed that defendant's "mouth" touched her vagina. The term touch is not limited to the hand or finger, rather, the courts look to any part of the defendant's body or the complainant's body to determine if there has been a "touching" as set forth by the Legislature. Com. v. Grayson, 549 A.2d 593, 1988.

                In Com. v. Evans, 901 A.2d 528, 2008 the court found that indecent assault occurred when Evans put his tongue into the complainant's mouth as it amounted to "touching" of a sexual or other intimate part of the body.

103.      This court loses touch with Legislative intent when it expands "touch" to be "sexual intercourse". C.C.'s claims, even if true, can be inferred as a "purpose of arousing or gratifying sexual desire, in either person". [18§3101] Indecent contact is not an element of IDSI nor incest. The evidence supports indecent contact which is only an element of indecent assault.

                This presents a dichotomy of sorts. With Rachel Vales "touching" is erroneously being pursued as "penetration". With C.C. "touching" is being erroneously pursued as "sexual intercourse"; however, neither of these crimes have an element of touching (indecent contact). In contrast to C.C.'s case where cunnilingus is erroneously being prosecuted as IDSI, in Gentile's case the same conduct was prosecuted as aggravated indecent assault.

                Here, "touching", whether by hand, finger or mouth is being erroneously construed to mean anything. Our Legislature did not anticipate such vagueness, and if so, the crimes alleged (IDSI, incest & AIA) are so vague as to be unconstitutional. Plainly, a "court may not achieve an acceptable construction of a penal statute by reading into the statute terms that broaden its scope". Com. v. Johnson, 26 A.3d 1078, 2011. By reading the testified to claim of "touching" into IDSI, incest or AIA this court broadens the legislative intent and creates elements not intended.^[24]

104.      There is no logic to claiming "touching" is "sexual intercourse" as it provides for suspect and inconsistent application. It would appear that due to this court's imposed ambiguities sexual intercourse "means" a penis going into a vagina for statutory sexual assault (18§3122.1) or rape of a child (18§3121(c)), but NOT for IDSI or incest, in this case. Touching a vagina - with any part of the body (just not the penis) is, apparently IDSI or AIA alternatively, in this court, but anywhere else its indecent assault. These selective, inconsistent and not-statutory interpretations render the crimes unconstitutionally ambiguous; thereby, violating due process of law.

105.      This Court's inconsistent application of erroneous interpretations can be exampled in the following table:

                     Monroe County's Non-Statutory Crimes Code

In 1997 with Danielle Gentile:

cunnilingus (touching) = aggravated indecent assault and/or indecent assault intercourse (penis in vagina) =  statutory sexual assault

[in 1997 cunnilingus is not "intercourse' apparently]

In pre-1997 with Rachel Vales (at a 2013 "interpretation"):

digital masturbation (touching) = aggravated indecent assault and/or indecent assault

In 2013 with C.C.:

cunnilingus (touching) = IDSI, incest, indecent assault

fellatio (touching) = IDSI, incest, indecent assault

[In 2013 "intercourse" means anything!]

                According to this, digital masturbation and cunnilingus are indecent assault or aggravated indecent assault, interchangeably, pre-1998. Yet, in 2013, cunnilingus is now IDSI and incest which require "intercourse", but apparently a different "intercourse" than that required for statutory sexual assault. However, at no time relevant hereto has our General Assembly changed ANY definition under (18§3101).

                A defendant simply has no idea what conduct comprises what crime due to erroneous and selective interpretations that are grossly inconsistent.

                Ignored by this court is that masturbation, cunnilingus and fellatio have one thing in common: Stimulation - for the purpose of arousal or sexual gratification in either person. (i.e. indecent contact, 18§3101). This is an element our General Assembly has attached to only ONE crime: indecent assault.

            WHEREFORE, defendant is entitled to an arrest of judgment and/or judgment of acquittal on both IDSI convictions and the incest conviction as no evidence of record exists to support the General Assembly's definition of "sexual intercourse".

G.     Rakaczewski's Conspiracy to Abrogate The Right of Counsel

106.      The Sixth Amendment provides that "[I]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." See Gideon v. Wainwright, 372 U.S. 335, 342 (1963). (6th Amendment right to counsel in criminal proceedings applies to states through 14th Amendment).

107.      In this case defense counsel was fully apprised of all challenges to credibility and of exculpatory evidence through provision of extensive and copious volumes of documentation and, as would be reasonably anticipated, counsel undertook his own investigations. However, quite inexplicably, defense counsel "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing" which rendered the adversarial process itself presumably unreliable. U.S. v. Cronic, 466 US. 648 (2008) (presumption of prejudice exists where "likelihood that any lawyer even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.) See also Bell. v. Cone, 535 U.S. 685, 2002 (counsel's failure to oppose prosecution at specific points warranted Strickland analysis rather than prejudice presumption because counsel's representation was not complete failure to test prosecution).

108.      Due to concerns about fundamental fairness, the court may also examine whether counsel's ineffective assistance "deprive[d] the defendant of a substantive or procedural right to which the law entitles him." Williams v. Taylor, 529 U.S. 362, (2000) (referring to counsel's failure to investigate and present evidence).

                The Williams court made it clear that an inquiry into "fundamental fairness" should be rare; however, the circumstances of this case compel such an inquiry. See Pavel v Hollins, 261 F.3d 210 (2d Cir. 2001) (counsel's failure to call important fact witnesses and medical expert at trial was ineffective assistance because testimony of those witnesses would have rebutted prosecution's already weak case).

109.      Whether a conflict of interest or a conspiracy to deprive defendant of his right to counsel or a fair trial exists the result was the same. In some circumstances courts have interpreted  the abrogation of counsel as a "conflict of interest". See Blankenship v. Johnson, 118 F.3d 312 (5th Cir. 1997) (conflict of interest affected performance because counsel took no action on behalf of defendant); Reynolds v. Chapman, 253 F.3d 1337 (11th Cir. 2001) (conflict of interest affected performance because counsel prevented from raising reasonable defenses in defendant's favor).

                Here, substantial  inferences exist that a meeting of the minds occurred between Adam Bompadre and Michael Rakaczewski to obtain a conviction at all costs. Based on the circumstances presented herein, no competent attorney, licensed to practice law, would have refused to present known exculpatory evidence, called known witnesses nor failed to have cross-examined the complainants with known and documented challenges to credibility, for there was nothing to lose by it and everything to gain.^[25]

110.      Defendant avers that there was a government intrusion into the attorney-client relationship that violated the Sixth Amendment. This intrusion was precipitated by Rakaczewski in reliance on Bompadre's propensity to hide evidence in a pro-prosecution manner. Trading on this unethical tenet of Bompadre's [see attached Wayne Independent article: "Public Defender alleges DA withheld evidence"]  Rakaczewski enlisted him to abrogate the constitutional right to counsel. [See attached Affidavits]

            WHEREFORE, for the forgoing, defendant avers that he is entitled to the conduct of an evidentiary hearing to make a determination of extra record facts to further develop this issue, as its resultant effect was the denial of a fair trial.

H.    Denial of The Right to An Impartial Jurist

111.      Recusal is appropriate where a judge is personally interested in the outcome of a party's cause and is so closely related to a party or attorney that such personal interest can be presumed.

                Recusal is appropriate where the record shows that a particular ruling or rulings which materially prejudice the party seeking recusal resulted from expressed bias or ill-will against the party. Reilly v. Septa, 507 Pa. 204, 1985.

                In this case there has been a continual and pervasive breakdown in the adversarial process that is pervasive and derives primarily from the conduct of this court.

112.      At the initiation of this action this court has supported a desire of this judicial district in toto to punish, marginalize and silence the innocent defendant for his diligent exercise of his constitutional rights to seek redress of grievances. The design is to suppress challenges to the prior false conviction that required the recusal of two judges of this Court. These judges failed to correct fraud perpetrated by attorneys and the district attorneys that was then erroneously adopted by the Superior Court to deny relief. These judges allowed the known perjury of Brian Germano to go uncorrected, instead, they adopted perjury to deny relief.

                This current court continues to vindicate the prior fraud while knowing and having  a duty to know that doing so is injustice.

113.      In this case, the court's appearance of impropriety is palpable.  To subvert the adversarial process this Court has abrogated ANY need for either party to respond to ANY motion filed. These entire proceedings have been reduced to ex-parte rulings absent nearly ANY response from the opposing party, resulting in an abrogation of due process of law.

                This court has demonstrated an objectively apparent appearance of impropriety by:

-     Denying bail in its entirety when others similarly situated have been granted bail, and

-     Intentionally misinterpreted Pa.R.Crim.P. No. 600 in such a way as to render it meaningless; and

-     Repeatedly and without compunction advocated for the Commonwealth; and

-     Obstructing defendant from obtaining discovery of material credibility challenges to the Commonwealth's witnesses; and

-     Sua sponte taking judicial notice of other cases to advance the position of the Commonwealth; and

-     Repeatedly interposing suspect interpretations of law NOT advanced by either party; and

-     Repeatedly refusing to apply the rule of lenity; and

-     Sua sponte interposing theory or case law that neither party has relied upon in such a manner as to be pro-prosecution; and

-     Failing to address discreet issues that entitle defendant to relief; and

-     Refusing to conduct the determination of motions in open court to allow BOTH parties to litigate relevant concerns.

114.      It is well known in this judicial district that defendant is litigious - and rightfully so - yet, it is equally well known that the judges of this court, in near equal unanimity, will collude with each other to obstruct the administration of justice - at all costs - to punish the innocent defendant for doing what the law allows.

115.      This court was equally exposed to the facts and documentary evidence espoused by defendant in his January 27, 2016 Limine Motion and was predisposed toward sua sponte taking judicial notice of facts from other cases the defendant was involved in.

                The court, unlike the prosecution, is not an adversarial party in the proceedings. It acts neither to prove guilt nor establish innocence; but, merely to maintain a fair trial. It is almost inconceivable that a court, possessing exculpatory information must remain silent when the prosecution possessing identical information would be compelled to speak. U.S. v. Cuthberson, 511  F.Supp. 375 (D.N.J.) (1981)

                In circumstances like this case, when a miscarriage of justice is threatened that due process requires judicial intervention through sua sponte disclosure. Com. v. Santiago, 591 A.2d 1095, 1990.

                Because this court  sua sponte took notice of items like the default finding of paternity by judge Zulich, it is reasonable to assume the court was aware of the filings in custody that support inferences that defendant had no access nor involvement with C.C. for purposes of indecent contact, particularly since Stephen Higgins sits as a judge on the same bench.

            WHEREFORE, defendant avers that the appearance of impropriety is great and recusal may be required to cure such, in the interests of justice.

Respectfully submitted,

September 9, 2016

Justin Corliss

4250 Manor Drive

Stroudsburg, PA 18360

Attachments

A.     Danielle Gentile's card to defendant

B.     Wayne Independent article on Bompadre

C.     Affidavit of Evi Yuliana

D.     Affidavit of Robert Cyphers

E.     Wyoming Regional Lab Report #97-99

F.      Greensburg Regional Lab Report #G98-0979-G

G.     Cheslock's 9/10/10 letter

H.     8/12/10 Order in Custody

I.       Emails/letters 6/20/10, 3/1/10, 6/11/10

J.       4/25/00 Notes of testimony

K.     6/20/00 Opinion

---

^[1] The Superior Court decision [Nos. 2091 & 2105 EDA 2015] essentially created a new rule of law; whereby, in order to obtain a conviction, where evidence is wholly lacking, the defendant's prior conviction can be  used to secure a conviction. This travesty of law violates long held and bedrock principles of due process and the presumption of innocence which forbid the introduction of a prior conviction. Under misguided reliance on Com. v. O'Brien, 836 A.2d 966, 2003 (which was a bench trial where it is presumed that the judge would disregard inadmissible evidence) the Superior Court confabulated Rakaczewski's fraud to justify a Rule 404(b) exception, to ensure a conviction, not a fair trial.

^[2] At the evidentiary hearing held on 3/18/14 defendant was confronted with this fraud for the first time and combined it with the untried claims of contact at Karen Vales' house, [N.T. 3/18/14 @37-39] as both claims are fictitious, and defendant was never on notice to defend against them.

^[3] Brink's clarification here as to what type of "sex" ("intercourse") throws into contention the aggravated indecent assault and indecent assault convictions from 1998 as the defendant has propounded for years as it resulted in an illegal sentence and registration under Megan's Law.

^[4] As an aside former trial counsel Brian Germano lied about the alibi [N.T. 4/25/00 @149-150 & 167] which was relied upon by the court [6/20/00 Op. @15-16] and the Superior Court relied on this fraud to deny relief erroneously. [attached] The issue was the lack of an alibi instruction reflecting evidence placing defendant at Burger King in Stroudsburg during the claimed evening time frame.

^[5] Historically, Gentile/Brink's stories expand to encompass never before made claims after Lynott needs her to. In the first trial the prosecution wanted to obtain a conviction for a Megan's law offense, so Lynott suborned the cunnilingus claims and exaggerated them as aggravated indecent assault. After realizing the semen in Gentile's underwear was arguably from someone related to her, Lynott suborned perjury of the birthmark and conduct at Vales' house. Here, Lynott conspired with Rakaczewski to suborn more perjury from Brink to "link" cases, thus the expanded claims of "tickling", "touching", cunnilingus and supposed trips to New York. Brink is a pathological liar willing to adopt ANY lie than be outed for the fraud she has perpetrated for years.

^[6] In sex cases, when witness credibility is of paramount importance the prosecution reasonably should know that the issue of apparent truthfulness could determine the outcome. Thus, witness credibility is of critical importance, indeed, a jury's appraisal of a person's credibility can weigh heavily in its final verdict. Com. v. Jenkins, 476 Pa. 467, 1978. Because this is so, when the reliability of a witness may be determinative of the outcome, evidence affecting the credibility of that witness must be disclosed. Giglio v. U.S., 405 U.S. 150, 1972

^[7] In Rakaczewski's 3/31/14 brief in support of admitting prior bad acts he stated: "The evidence is necessary to defeat the defendant's possible defense that Tom Lynott is behind all of this and it is all part of some grand conspiracy because of the claim Lynott subordinated (sic) perjury in his first trial." This court relied on this [Op. 6/17/14 @17-19] and Rakaczewski complained about it again on appeal [Appellant's Brief, 2091 EDA 2014 @10, & 21-22]. Lynott did suborn perjury and Rakaczewski knows it, yet Rakaczewski elicited it - again, and kept Lynott off the stand. Rakaczewski believes that "bad acts" can be invoked as a talisman to any evidentiary deficiency of the prosecution; however, this is NOT what Pa.R.Evid. No. 404 was designed for.

^[8] The Pennsylvania Supreme Court, in Com. v. Bazemore, 531 Pa. 552, 1991 (citing Com. v. Wallace, 510 Pa. 270, 1983) has held that:

"The prosecutor, whose duty of course is to seek justice, not merely to convict ... has an affirmative and continuing duty to disclose exculpatory information to the defendant and to correct false testimony of a witness." (Pa. Rules of Proff. Conduct 3.3(a)(4), 3.3(b) and 3.3(d)). Moreover, "when the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure [on the part of the Commonwealth] of evidence affecting credibility" violates due process.

^[9] The omitted Child Advocacy Center video evidences that C.C. left Guskiewicz's crying once and even after being barred by Court order for being alone with Guskiewicz the video attests to the contrary.

^[10] Rakaczewski did not ply this court nor the Superior Court with these claims when pursuing "bad acts". The record is completely devoid of these claims prior to trial which amounted to trial by ambush.

^[11] At the bad acts hearing Gentile/Brink asserted the card was to "make up for ... accidentally" hitting her with a rock - an inconvenient fact Rakaczewski deliberately ignored. [N.T. 3/18/14 @32]

^[12] It is well established in Pennsylvania that reference to prior criminal activity of the accused, either expressly or by reasonable implication is not permitted. Com. v. Percell, 454 A.2d 542, 1982; Com. v. Stanley, 398 A.2d 631, 1979. There was simply no logical connection between the incidents to show an element of a crime and resulted in evidence of a propensity to commit crime. Com. v. Miller, 664 A.2d 1310, 1995; Com. v. Burton, 770 A.2d 771, 2001 (evidence of distinct crimes is not admissible against a defendant being prosecuted for another crime solely to show his bad character or his propensity for committing criminal acts.)

^[13] ADA Rakaczewski enlisted the perjurous Danielle Brink to support this alleged crime by falsely claiming that she too went to New York, and miraculously, she too pretended to be asleep. [N.T. 5/31/16 @36]

^[14] Aggravated indecent assault, 18§3125, does not possess a 'course of conduct" clause and thus dates of alleged conduct are required. Accord 42§5552(d). Defendant was on notice to defend against two counts, one of which was a supposed trip to New York.

^[15] The federal constitution mandates that each and every element of the crime must be proved by the prosecution beyond a reasonable doubt. Martin v. Ohio, 480 U.S. 228, 1987.

^[16] The statute of limitations remains a basic guarantee against stale prosecutions, and it is the duty of the court to liberally apply it in favor of the defendant and against the Commonwealth. Com. v. Cardonic, 448 Pa. 332, (1972). No evidence was presented to the jury that an applicable exception applied. When a statute of limitations defense is raised, as here, the trial court must instruct the jury with sufficient clarity for the jury to know what must be proved to meet any exception claimed by the Commonwealth. The trial court is required in every case to elucidate the law and clarify the issues to be decided, so that the jury may know what questions they are to resolve. See Com. v. Fanelli, 377 Pa. 555, 1988.

^[17]Touching, even by force, any part of the body, for the purpose of arousal amounts to indecent assault. Com. v. Grayson, 549 A.2d 593, 1988 Indecent contact occurs when there is proscribed contact with the female or male genitals of either party. In In re A.D., 771 A.2d 45, 2001, evidence proved that juvenile "touched" the youthful complainant's vagina with his penis; In Com. v. Gordon, 543 Pa. 513, 1996 defendant rubbed his penis against "buttock/thigh/legs" of complainant. In In re J.R., 648 A.2d 28, 1994 defendant licked the vaginal area of complainant. All such conduct was properly construed as indecent conduct. [These cases are cited with approval in the Pennsylvania Crimes of Sexual Violence Benchbook, 2015]

^[18] AIA has a requisite element of "penetration", different from sexual intercourse, and has an express "aggravated" factor which distinguishes the crime from indecent assault. The title of a statute may be considered in the construction thereof. 1 Pa.C.S. §1924 Thus, the "aggravated" factor refers to the gratuitous use of threat, violence, terror, cruelty or humiliation, none of which apply here.

^[19] Rakaczewski refused to introduce the video taped Child Advocacy Center interview that shows C.C. being asked twice whether a penis enters her mouth and she affirmatively states "No". This contradictory evidence challenged C.C.'s credibility yet Rakaczewski deliberately withheld it.

^[20] Under our system of jurisprudence the legislature is charged with the responsibility of defining the elements of crime. Com. v. Graves, 401 Pa. 118, 1975

^[21] Some reviewing courts have erroneously treated the phrase "emission is not required" as surplusage in direct contravention to the Statutory Construction Act. The intent in doing so is to expand "sexual intercourse" beyond that anticipated by the Pennsylvania General Assembly. A principle of statutory construction is to give effect to all their provisions, so that none are rendered mere surplusage. 1 Pa.C.S.§1921(a). It is presumed "[t]hat the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable". 1 Pa.C.S. §1922(1) Thus, to construe sexual intercourse as not requiring a penis renders the language of "emission" mere surplusage. Stated otherwise, every provision of a statute is presumed to be intended for some purpose and may not be reduced by interpretation to mere surplusage. Accord Phil. Corr. Off. Assoc. v. Pa. Labor Relations Bd., 667 A.2d 456 (Pa. Comm. 1995)

^[22] In Giles v. Maryland, 386 U.S. 66, 1967 the U.S. Supreme Court gave a lucid and instructive recitation of facts that involved an honest and frank discussion of the proper use of the terms "emission", "penetration", "intercourse", "insertion" and reaching "climax". This is relevant from a textualist perspective as former justice Scalia pursued. Our statutes are written on the same basis that the Giles court properly construed "intercourse". It is impossible to believe that the U.S. Supreme Court or our General Assembly would arrive at the erroneous extrapolations pursued by some courts to justify ANY conduct to be "intercourse". When the General Assembly adopted the crimes code in Pennsylvania it was with the plain understanding, at that time, as to what "intercourse" meant. It is not for ANY court to add what our Legislature has chosen not to for the Statutory Construction Act was written to prevent the judiciary from encroaching on the Legislature.

^[23] This Court sua sponte interposed that a civil finding by default established "paternity" to justify the crime of incest. However, whether this proved paternity beyond a reasonable doubt was not submitted to the jury. Additionally, the Commonwealth has access to defendant's DNA profile and their failure to determine parentage is a fatal flaw to any conviction for incest.

^[24] In writing the statute for "sexual abuse of children" (18§6312) the Legislature provides "Definitions", as relevant here:

"Prohibited sexual act" Sexual intercourse as defined in section 3101 (relating to definitions), masturbation, sadism, masochism, beastiality, fellatio, cunnilingus ... " [18§6312(g)]

Plainly, our Legislature distinguishes cunnilingus and fellatio from sexual intercourse. See also 18§5903(b) "sexual conduct"; distinguishing acts. This court is legislating from the bench when deviating from Legislature's intent.

^[25]         There is a reasonable probability that Rakaczewski pursued this prosecution vindictively. Actual vindictiveness requires objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights. To do so the following must be established: (1) the prosecutor harbored a genuine animus toward the defendant, or was prevailed upon to bring the charges by another (Lynott, Tsang) with an animus such that the prosecutor could be a stalking horse; and (2) the defendant would not been prosecuted  except for the animus. See U.S. v. Sanders, 211 F.3d 711 (2d Cir. 2000); U.S. v. Bout, 731 F.3d 233 (2d Cir. 2013)

            Here, Tsang used the police to transform civil proceedings into a mere stalking horse for the investigations into false allegations of sexual misconduct for a retaliatory purpose. Lynott utilized uncorroborated claims coerced by Tsang to usurp prosecutorial discretion to advance her retaliatory agenda. Rakaczewski vindictively prosecuted to advance this judicial districts design to punish defendant for exercising his Constitutional right to seek redress of grievances.

            The attempt to secure a false verdict by corrupt and perjured testimony is a direct violation of the official oath administered on admission to the bar and, upon proof of such conduct, suspension must follow. Barach's case, 123 A. 727, 1923.

            The public's interest in fair trials and the conservation of resources is poorly served by a policy of refusing to take corrective action in response to known prosecutorial misconduct.

Click here to view the Attachment to this Amended Brief or click the Justin Corliss Amended Brief Attachment link on the upper right side of this Page.