IN THE COURT OF COMMON PLEAS, MONROE COUNTY, PENNSYLVANIA

COMMONNWEALTH OF PENNSYLVANIA 

v 

JUSTIN CORLISS, 

Defendant 

No. 1749 CR 2013

No. 2173 CR 2013

DEFENDANT'S POST SENTENCE MOTIONS

Pursuant to Pa.R.Crim.P. No. 720(b), Defendant, Justin Corliss, files these Post-

Sentence 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

frivolous conduct of filing time-barred charges and for joinder. This conduct of

depriving defendant of liberty prior to trial acts to punish the incarcerated defendant

for defending and violates the equal protection clauses as those who are at liberty

prior to trial are not imprisoned for filing pre-trial motions to defend, when no trial

was commenced.

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. This lack of diligence acted to

deprive defendant of his right to a speedy 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.]1

11. On July 14, 2014 Corliss filed a motion to dismiss pursuant to Rule 600 in C.C.'s

case and on August 13, 2014 in Rachel Vales' 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. The Court held that

motions filed by defendant, which the Commonwealth never responded to or

opposed, were sufficient to deny relief under Rule 600(A).2

12. On July 17, 2014 the Commonwealth filed an interlocutory appeal to the Superior

Court challenging the denial of bad acts, representing that absent alleged 'bad acts' no

prosecutions could occur.

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 3; 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, setting forth therein the lack of probable cause premised on the evidence

Michael T Rakaczewski deliberately ignored and omitted. A hearing was requested

pursuant to Franks v. Delaware, 438 U.S. 154, 1978 but refused.

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.4

18. Danielle Gentile Brink used to be in the employ of the defendant in 1997. While

precocious, she was very socially active as having a boyfriend, Lenny Corbo, and

seeing another, William Garris in July of 1997. It is suspected that Gentile feared she

was impregnated in June of 1997 and attempted to lure the unsuspecting defendant

into a relationship with her. When defendant spurned this attempt an elaborate story

of sexual conduct was foisted on him and partially supported by her cohort Geralyn

Viglione. The claims grew with the involvement of Tom Lynott who had Gentile

adopt new claims never before made. At a trial, defendant was acquitted of two thirds

of the claims; however, the subornation of perjury involving an uncharged claim of 

indecent exposure and the suppression of exculpatory DNA evidence controlled the

outcome of the trial.

Here, Brink repeated her perjurious claims from 1998 and even added new

claims of conduct never before made and substantially changed her testimony to

conform to "patterns" Rakaczewski needed to justify "bad acts" claims. Brink's

cohort Viglione testified in such a manner that might merit an acting award were it

not so phony.

19. Karen Vales' testimony is that defendant may have had an opportunity to have had

some contact with R.V. and that R.V. claimed to have had one bad interaction with

defendant; however, when Karen confronted R.V. with this claim, R.V. admitted she

had lied. Karen interposed a new claim of confronting defendant with R.V.'s claim

but again maintains only one allegation of inappropriate conduct. Vales did provide

some support for R.V.'s suspect mental/psychological issues R.V. was having as a

child with her father and social adaption which necessitated R.V.'s removal from

school which suggests an organic disorder that the Commonwealth failed to disclose

prior to trial.

20. R.V. testified to indecent touching at her home and once during an alleged trip to

New York with defendant. She admits having relationship problems and questionable

decision making skills, with episodic paranoia. R.V.'s claims do not reconcile

themselves as she states she tried to avoid defendant, as though in apoplexy, yet then

claims to want to go to New York with him, alone! Due to staleness her claims are

difficult to countenance as circumstances never existed to substantiate these new

stories.

21. C.C. claimed, without elaboration, that she is in her parents bedroom and is

indecently touched there, in such a manner that would at least require her to partially

disrobe, yet seems to forget her proximity to discovery at any time if her story from

2013 is to be believed. C.C.'s selective loss of memory precluded any meaningful

examinations. C.C.'s claims, like R.V.'s are impossible to prove or corroborate and

are overly stale. Though she claims repeated instances, irreconcilably no claim of

actual intercourse is made, which is difficult to fathom in the grand scheme of things.

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. 720)

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.

22. 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.

23. 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.

"(a) A lawyer shall not knowingly :

...

(3) Offer evidence that the lawyer knows to be false."

Rule 3.3 Candor Toward the Tribunal, PA. Rules of Professional

Conduct

B. Danielle Gentile/Brink's Perjury at Trial

i. Rakaczewski relied repeatedly on the content and wording of a joke greeting card

given to Danielle Gentile in 1997 [N.T. 5/31/16 @18,46, 69, 236; N.T. 6/1/16 @46].

Although no complainant made similar claims. Rakaczewski unethically and

deliberately misrepresented the card in order to gain a false conviction. 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]

b. The greeting card was dated July 7, 1997 and could not possibly have been in

response to the story of sexual intercourse Gentile made up as occurring on

July 1, or July 9, 1997.

c. Gentile's leading and provocative "non-sexual" card was part and parcel to

her failed attempt to fabricate a relationship. At trial in 1998 Gentile's cohort

Viglione admits and confirms an argument wherein Gentile tried to infer a

"relationship" with defendant, to which defendant retorted that this premise

was a "crock of shit". [N.T. 7/9/98 @105 & Police Report 7/11/97 @10] It

was only after rebuffing Gentile that the story of sex was initiated by Viglione

who admitted to "pretending" to mislead defendant. [N.T. 7/9/98 @104]

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". 5[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.6

The omitted truth:

a. On July 10, 1997 Pocono Township officer Robert Miller interviewed Danielle

Gentile. His police report provides:

"Victim (sic) 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.]

d. Brink's long-time cohort, Geralyn Viglione, whose story includes two claims

of sex has repeatedly stuck to a story that contradicts Brink's claims here.

[7/9/98 N.T. @76-108, N.T. 5/31/16 @65-85] (see also Viglione's statement in

PSI)

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 part iii 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". [5/31/16 N.T. @42-43] No complainant 7 made similar claims.8

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.9

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.10 [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. [N.T. 7/10/98 @278-289]

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 by the prosecution, at

their lab, and found to contain "seminal matter". [Wyoming Regional

Laboratory, Incident #97-99] [attached] ADA Stephan then sought DNA

testing of the defendant. On 1/15/98 judge O'Brien issued an order providing

that "[u]pon conclusion of any analysis conducted on the sample produced

results thereof shall be furnished forthwith to counsel for the Defendant ...

This ruling is without prejudice to the right of counsel for the Defendant to

request further testing, by an expert of the defense's choosing, following

conclusion of the laboratory testing conducted at the request of the

Commonwealth."

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. This conclusive

finding excluded the defendant as the donor of the semen found in Gentile's

underwear.

e. The Greensburg report, No. G98-0079-G, does not use the vague term

"inconclusive" anywhere therein, due to the "match".11 The results acted to,

and do, exonerate defendant for clearly an unidentified man had sex with

Danielle Gentile at the relevant time, perhaps someone she has spent nearly

twenty years lying for. There is an indication of a blood test for pregnancy at

Pocono Medical Center, and possibly Gentile taking a "morning after pill";

however, the Commonwealth has never produced the results of any tests or

results thereof. [Police Report 7/10/97 @6] If, in 1997, human chorionic

gonadotrophin was detected, Gentile would have to have been impregnated

well prior to July 1, 1997. If so, her motive to lure defendant becomes clear.

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, seeking a delay that trial counsel Germano did not concur with.

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. No chain of

evidence relating to the DNA evidence was ever produced. This unauthorized

testing has all the indica of misconduct and the potential for tampering;

thereby, any results obtained should be regarded with suspicion and disdain if

not simply barred for violating a court order and acting deceitfully.12

h. Prior to the July 1998 trial a hearing was held on June 16, 1998 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, her father or cousins were tested.

i. At trial, counsel Germano, moved to inform the jury about the 'unindicted coejaculator'

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] Defense

attorney Germano sought to inform the jury "that there is no match based on

scientific testing." [Id.] Because judge O'Brien was lied to, that the results

were "inconclusive", he would't spend money to have the experts come to

testify. To date Beth Ann M. Giles nor Sandra Singer have EVER testified to

their results obtained at the behest of the prosecution.

j. After trial a hearing was held on September 30, 1998 wherein judge O'Brien

made a number of contradictory and ill-informed claims, regarding,

apparently, his confusion of the DNA stating:

"What happened, when they submitted the test from the Commonwealth

testing laboratory, there was insufficient sample, and they couldn't make

any conclusion, and therefore there was never any use of anything in the

rape kit to identify the defendant as the donor."

...

Pretrial defense counsel was concerned about the use of this rape kit

because the conclusion reached by the Commonwealth's testing

laboratory was they couldn't identify who the donor was.

...

The Commonwealth at one point took the position that they wanted to

use the rape kit to show that there had in fact been some semen in the

victim. (sic) The defense vigorously objected on the ground that would

imply it was this defendant, when in fact they couldn't identify that it was

the defendant that was the donor; so that it excluded all testimony from

the rape kit.

...

Someone could imply it was this defendant, when there was no proof of

that from the standpoint of scientific proof." [N.T. 9/30/98 @8-10]

There is no record support for many of Judge O'Brien's claims here.

k. On appeal to the Superior Court ADA Stephan materially misrepresented the

testing results, made numerous claims of the defense objecting pretrial when

in fact all the evidence of record contradicts her claims. The Superior Court

relied on this fraud in denying relief stating "[b]efore the start of trial, defense

counsel objected to the Commonwealth making any use of the test results.

That relief was granted." [Com. v. Corliss, 750 A.2d 366, 1999 @10] The

Superior Court relied on judge O'Brien claim that "the test results did not

conclusively exculpate him." [Id.] (see section vi, c&d, supra.) All the record

evidence reflects defense counsel Germano repeatedly seeking review of, and

submission to the jury, of the exculpatory DNA evidence, stating at trial:

"I would seek to gain admissibility of all this evidence to show that there

is no physical evidence linking this defendant to the alleged sex

acts." [N.T. 7/9/98 @61]

l. After years of trying to get ONE fair judge to review the REAL results and

record facts, Judge Charles B. Smith finally determined:

"The evidence presented at the hearing showed improper handling of the

DNA evidence obtained from the complaining witness and an arguable

misrepresentation of what the DNA evidence revealed." [Op. 4/21/08

@2]

m. Here, prosecutor Michael T Rakaczewski relied on the false conviction from

1998, that the DNA evidence is relevant to; however, he not only failed and

refused to inform the jury of defendant's exoneration, he refused to provide

access to any samples for DNA comparison and instead inferred that the

acquittals were ill-gotten.

n. Now, judge Williamson promises to re-review the DNA reports, ex-parte, with

no input from the report writers and to ignore Judge Smith's finding to produce

a pro-prosecution version to vindicate years of fraud, and intends to "interpret"

all facts of record.

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." [Police Report 7/3/1998 @23] A

review of Lynott's police report, the preliminary hearing and affidavit of

probable cause fail to support this fraud, coupled with the fact that defendant

was not charged with indecent exposure nor were body photos sought when

Lynott supposedly learned of this "earlier in the investigation". It is fraud like

this that led to Rakaczewski not calling the tainted Lynott to testify at trial.

Lynott then suborned perjury from Gentile to make her claim of seeing a

mark - to control the outcome of the trial.13

24. 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. 14 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.15

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.

25. 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.

26. 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".

27. 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.

28. 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.

29. "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)

30. 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.16

31. 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.17

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.

32. 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.

"The prosecutor in the criminal case shall:

(a) Refrain from prosecuting a charge that a prosecutor knows is not

supported by probable cause

...

(d) make timely disclosure to the defense of all evidence or

information known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense ..."

Rule 3.8 Special Responsibilities of a Prosecutor, PA. Rules of

Professional Conduct

C. C.C.'s Perjury at Trial

33. 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] Accord 23 Pa.C.S.A. §6311 et seq.

- 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]18

- 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.

i. In the affidavit of probable cause C.C.'s story is that defendant's penis does not

enter her mouth, a claim she repeats on interview at the child advocacy center;

however, at trial she changes her story and Rakaczewski did nothing to inform

the jury of C.C.'s prior claims.

34. 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. Evidence is material if the omitted e 19 vidence creates a reasonable

doubt that did not otherwise exist.

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. The omitted evidence would not have

been "merely a general assault on the veracity of the witness" but would have

directly contradicted her version of the facts. Accord. Com. v. Smith, 502 Pa. 600,

1983.

35. In determining the materiality of the omitted evidence this court must "consider any

adverse effect that the prosecutor's failure to disclose might have had on not only the

presentation of the defense at trial, but the preparation of the defense as well", Com.

v. Green, 536 Pa. 599, 1994." Favorable evidence is material and constitutional error

results from its suppression by the government if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different." Kyles v. Whitley, 514 U.S. 419. 1995.

36. 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.

37. 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).

38. 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.

39. 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.

40. Though plainly made aware of the omitted facts, and much more, Michael

Rakaczewski chose to remain willfully ignorant of the facts and deliberately made

certain that the jury did also.

41. It is said that "it is the state that tries a man, and it is the state that must ensure that

the trial is fair." Moore v. Illinois, 408 U.S. 786, 1972.

42. 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).

43. 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. Destroying the credibility of

Rakaczewski's witnesses would have changed the result of the proceeding. Accord

Com. v. Willis, 616 Pa. 48, 2012.

44. 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.20

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. Alternatively this

matter should be set down for the conduct of an evidentiary hearing to create a record of

all the evidence that Michael T. Rakaczewski deliberately, unethically and maliciously

omitted at trial which deprived defendant's jury of the ability to fairly weigh evidence in

this case.

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))

45. 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.

46. 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. The Commonwealth's Attorneys Act [71 P.S.

§732-205] provides a means for a fair representation of the Commonwealth's

interests here.

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.

47. 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.

48. 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]

49. 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.

50. 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.

51. 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.21

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, and to deny

him the presumption of innocence as derived from the U.S. and Pennsylvania

Constitutions.

This Court failed to assess the "need" of the Commonwealth's introduction

of the plethora of other crimes claims. Because Michael T Rakaczewski opened with

other crimes claims his unethical conduct may have obstructed the Court's ability to

assess the prejudicial impact.

52. 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. There appears to have been sufficient

testimony alone to convict (absent defense counsel's refusal to defend), as such, there

was no "need" for the other crimes claims. Michael T. Rakaczewski's prior fraudulent

claims to this court and the Superior Court (see foot note 12, supra.) were foisted as

merely a ruse.

53. 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]

54. 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).

55. 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] Additionally, even were the other crimes

claims relevant or admissible, the instruction rendered the jury fails to identify which

"limited purpose" the evidence was used for, [N.T. 6/1/16 @69], as this Court listed

nine "options" which were not established prior to trial and resulted in a confusing

and improper jury charge. Accord Huddleston v. U.S., 485 U.S. 681, 1988. A new

trial is due on the basis of this erroneous jury instruction.

56. 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.

57. Upon opening statements Michael Rakaczewski opened with the greeting card22

[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. An obj 23 ection or motion to strike here would have

been useless as the prejudice was so overwhelming as to have controlled the outcome

of the trial.

58. 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. The prior

conviction was not an element of any crime alleged here.

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. This evidence was not probative of a

material issue other than defendant's character and alleged propensity to commit

crime.

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.

59. 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.

60. 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).

61. 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.)

62. 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.

63. 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.

64. 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.

65. 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.

66. In order for testimony to be admissible to prove a common scheme as to the crime

charged, the separate crimes must "share a method so distinctive and circumstances

so nearly identical as to constitute the virtual signature of the defendant." Com. v.

Weakly, 972 A.2d 1182, 2009. There must be such high correlation in the details of

the crimes that proof that a person committed one of them makes it very unlikely that

anyone else committed the others." Id. In short, the testimony regarding the alleged

prior acts must demonstrate "much more than mere repeated commission of crimes of

the same class." Com. v. Miles, 846 A.2d 132, 2004.

67. 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.

68. 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.

69. 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; yet, this court took no opportunity to limit these claims nor

offer a cautionary instruction to prevent unfair prejudice to defendant.

70. 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.

71. The cumulative effect of prosecutorial misconduct constituted a deliberate attempt to

destroy the objectivity of the jury and prevent the jury from rendering a true verdict

and so infected the trial with unfairness as to make the resulting conviction a denial

of due process. Darden v. Wainwright, 477 U.S. 168, 1986. Only a person blinded by

ambition or ignorance of the law and ethics would have proceeded down this

dangerous path. (Michael T. Rakaczewski did this)

A mistrial should be granted.

E. Prejudicial Comments and Undue Prejudice From Unwarranted References

72. 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".

73. 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.

74. 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.

75. 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. Defendant's right

to the presumption of innocence was usurped through the use of this term.

76. 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]24

77. 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. A prosecutor may not offer his

opinion on the guilt or credibility of any testimony of the accused. Com. v. DeJesus,

580 Pa. 363, 2004 See also Pa. Rules of Prof. Conduct No. 3.4.

78. 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).

79. 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.

80. 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.720)

Case No. 2173 CR

81. 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§3125.25

82. 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.26 No notice pursuant to Pa.R.Evid.No. 404(b)(3) was provided

involving uncharged claims of conduct en route to New York. This testimony was

plainly put on to establish one count of aggravated indecent assault; otherwise, it

would amount to impermissible propensity evidence. This court's suspect claim that

two counts charged don't include the New York claim conflicts with the jury's

obvious view of the evidence presented and the prosecution's theory of the case.

83. No instructions were given regarding the element of jurisdiction for this alleged

crime. [18§§102 & 103]27

84. Absent testimony establishing conduct occurring in Pennsylvania, this count fails.

Accord Com. v. Seiders, 11 A.3d 495, 2010.

85. 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.

86. 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.

87. 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] Defendant 28 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.

88. 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.

89. 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".

90. 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]29

91. Clearly the inside of a vagina is a "sexual .... part," as anticipated by the legislature,

that can be touched for the purpose of arousing or gratifying sexual desire.

92. 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]30 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.

93. 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 26, supra.] While there exists judicial claims to the

contrary, this merely examples that differing opinions exist; however, penal statutes

are to be strictly construed in favor of the accused. (1 Pa.C.S. §1928(b)(1)). Here, the

rule of lenity directs that the "touching" alleged be construed as indecent assault -

which is time-barred.

When jurists of reason have reached two different interpretations and/or

reasonable constructions, the construction which operates in favor of the defendant's

liberty must be applied, not the construction supported by the greatest reason. Com.v.

Berryman, 649 A.2d 961, 1994; Com. v. Graham, 607 A.2d 580, 2009. If "touching"

is erroneously construed here to support two crimes under more than one rational

inference, the rule of lenity would apply.

94. 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 31 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. However, if this court persists in

construing that touching for arousing or gratifying sexual desire amounts to

"penetration", where our courts have rejected this before, and then statute should be

considered void for vagueness and facially overbroad.

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

95. C.C. claimed that all conduct complained of occurred "in my mom and his

bedroom." [N.T. 5/31/2016 @93]

96. 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. The Commonwealth relies

on Com. v. Bishop, 742 A.2d 178, 1999 to support this conviction; however, Bishop's

counsel did not properly raise, argue or brief his claim from a statutory construction

perspective, rendering Bishop mere dicta.

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.

97. 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)]

98. 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.

99. 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] [FN27 & FN28] 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)]

100.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.

101.In this case defendant was found guilty of "attempt" involuntary deviate sexual

intercourse, [18§§901, 3123], (IDSI).

102.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.

103.The evidence of record, as testified to by C.C., is that, she now claims, that

defendant's penis did go into her mouth.32 [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.

104.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.

105.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§4302.33

106.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).

107.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.

108.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].34 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".35 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.36 Courts are to construe nontechnical words and phrases, which remain

undefined, according to their ordinary usage under 18 Pa.C.S.A. §105 and 1 Pa.C.S.

§1903(a), and to construe such in favor of the accused. 1§1928(b)(1)

109.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. 37

110.Here, C.C. claimed that defendant's "mouth" touched her vagina. Clearly, a labia,

vulva or clitoris is a "sexual ... part" that can be touched. [18§3101] 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. It certainly does not stretch

the imagination to recognize that a mouth can touch a penis "for the purpose of

arousing or gratifying sexual desire".

111.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" to support a claim of aggravated indecent

assault. 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 /

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.38

112.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. This

issue was properly raised and argued in defendant's limine motion. [1/27/16]

113.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. Thus, where two

interpretations exist, the one that favors the accused must prevail. [1§1928(b)(1)]

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. Post-Sentence Motions for Relief

114.Defendant's Constitutional right to a speedy trial, as incorporated into Pa.R.Crim.P.

No. 600 was violated when in excess of 365 days passed, from the two dates of being

charged here, prior to being brought to trial and this Court abused its discretion in

failing to dismiss these cases with prejudice based on the following facts:

A. Defendant has been available for trial as being incarcerated absent bail

since July 10, 2013 [in 1749 CR 2013] and August 13, 2013 [in 2173

CR 2013] until trial finally began nearly three years later on May 31,

2016; and

B. The Commonwealth exercised no diligence to commence a trial and, in

fact, was deliberately dilatory and relied on erroneous constructions of

Rule 600, issued ex parte by this court, to indefinitely imprison with a

design to impede, obstruct and deny defendant's right to defend; and

C. The Commonwealth erroneously relied on judicial delay in resolving

issues they initiated to exact continuances that were erroneously

claimed to be the burden of the defendant; and

D. Nothing the defendant or his counsel did impeded or obstructed the

Commonwealth from commencing a trial prior to the expiration of 365

days under Rule 600, in fact, nearly all motions filed were ruled on in

an ex parte manner as the Commonwealth neither responded nor

opposed any pro se motions filed; and

E. Because Rule 600's 365 days rule encompasses and anticipates the

usual motions, delays, and scheduling snafus, no evidences exists that

anything extraordinary occurred that would have impeded the

Commonwealth to diligently schedule a trial prior to the expiration of

365 days in these cases; and

F. While the Commonwealth pursued an optional interlocutory appeal

after the expiration of 365 days, they took no opportunity to extended

or stay Rule 600 to cover this additional delay, as over 900 days passed

prior to any trial being commenced, and no finding that the appeal was

taken in defiance of defendant's speedy trial right was made.

WHEREFORE, defendant avers that pursuant to Pa.R.Crim.P. No. 600 he is

entitled to have both cases dismissed with prejudice as the Commonwealth failed and

refused to exercise diligence to commence a trial at any time prior to the expiration of

365 days and such conduct violated defendant's right to a speedy trial under Pennsylvania

law.

115.Defendant's Constitutional right to bail prior to trial was impermissibly denied which

acted to obstruct, deny and impede defendant in tending to his affairs, marriage,

business, property, reputation and defense as this Court erred as a matter of law in

denying bail by refusing to consider the following factors:

A. No evidence of violence or dangerousness existed; and

B. Unrebuttal evidence of a peaceful deportment exists; and

C. No evidence of a design not to appear at hearings, nor to flee

existed; and

D. No evidence that proof was evident or presumption great existed;

and

E. No consideration of reasonable conditions for release occurred; and

F. Substantial inferences exist that the refusal to grant bail was

designed to punish defendant for exercising his constitutional right

to seek redress of grievances in our courts previously; and

G. Ensuring the presumption of innocence; and

H. Avoiding the imposition of sanctions prior to trial and conviction;

and

I. Giving the defendant the maximum opportunity to prepare a

defense; and

J. Notwithstanding the foregoing Pa.R.Crim.P. No. 600(B) anticipated

defendant's release at the expiration of 180 days of pretrial

imprisonment which was unjustifiably refused based on factors that

rendered the rule nonexistent.

WHEREFORE, defendant avers that this court erred as a matter of law and abused

its discretion when it "revoked" bail and refused to comply with the mandates of Rule

600(B) by releasing defendant on nominal bail at the expiration of 180 days of pre-trial

imprisonment.

116.This Court erred and abused its discretion when assessing defendant for the sexually

violent predator designation pursuant to 42 Pa.C.S.A. §9799.24 as this act was not in

effect at the time the crimes were alleged to have occurred.

117.On August 9, 2016 Michael T. Rakaczewski moved to have any assessment

performed to be conducted pursuant to the law in effect at the time the crimes were

alleged to have occurred under 42 Pa.C.S.A. §9795.4. (The facts of record belie

Rakaczewski' apoplectic denial of authoring and filing his motions as uttered on

September 29, 2016, which was yet just another embarrassing deceit from this

troubled person). Rakaczewski's filings concur with defendant's ex post facto

evaluation; however, in 2013 our Pennsylvania Supreme Court found the

amendments to Megan's Law to have been unconstitutional which rendered

42§9795.4 void ab inito, a nullity.

WHEREFORE, for the foregoing, defendant avers that the assessment for the

sexually violent predator designation was conducted in error as lacking in jurisdiction and

the finding made must be vacated with prejudice.

118.Notwithstanding the lack of jurisdiction to conduct an assessment for a sexually

violent predator designation, this court erred and abused its discretion in claiming

that sufficient evidence existed to make the designation. Specifically:

A. The Commonwealth's witness lacked sufficient skill, knowledge,

information and experience to make a diagnosis of an incurable

disease and relied largely on the the mere "three convictions"

and a vague "paraphilic" claim absent any degree, schooling or

certification as a licensed psychiatrist; and

B. The Commonwealth's witness is not licensed to diagnose any

person with psychiatric disorder, particularly not a disorder that

is not recognized by any governing body of psychiatry; and

C. Absent the required licensing in psychiatry, the Commonwealth's

witness admitted that, even under her impaired assessment,

defendant did not meet the standards of violence nor a predatory

disposition; and

D. Notwithstanding the foregoing, any assessment that deviates

from the scientific basis of the Legislature's intent and design of

an actual finding of a predatory nature and violence any finding

of defendant meeting the Legislature's mandates is flawed and

unreliable.

WHEREFORE, for the foregoing, defendant avers that any designation of the

defendant as a sexually violent predator is fatally flawed as being based on the

Commonwealth's witness' unlicensed claims and the lack of scientific proof of violence

or a predatory disposition.

119.This Court erred and abused its discretion when joinder was sua sponte imposed

based on judicial economy.

120.At trial the Commonwealth failed to show a high correlation in the details of the

allegations that proof that the defendant committed one makes it very unlikely that

anyone else but the defendant committed the others. The other two cases have certain

similarities, they both involve girls of similar age group, having a family or personal

link to defendant; however, the types of misconduct are disparate and were separated

by a substantial period of time and involved different complainants.

They are claimed to have occurred under dissimilar circumstances in that

one claims digital masturbation while the other claims cunnilingus. Both are

common forms of child abuse claimed to have occurred long before the charges were

filed. These cases did not reach a high degree of correlation in detail required to

show a common scheme, plan or design. Com. v. Boulden, 116 A.2d 867, 1955.

The case of Com. v. Kasko, 469 A.2d 181, 1983 has nearly identical

circumstances as those here and the Superior Court vacated the conviction for failure

to sever.

121.Another factor weighing against joinder in these circumstances is that of disparate

defenses. In C.C.'s case substantial evidence of untoward conduct occurred exists,

there was a substantial motivating factor to fabricate the story in retaliation for

divorce/support litigation and evidence existed that another person was actually

grooming/touching C.C.

In R.V.'s case only one claim of conduct was ever made to her mother,

which R.V. admitted to lying about. There were also challenges to her father/daughter

relationship, expiration of the statute of limitations and an alibi defense.

WHEREFORE, for the foregoing, defendant avers that it was error and an abuse

of discretion to sua sponte join these two disparate cases merely on a premise of judicial

economy.

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

122.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).

123.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).

124.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).

125.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.39

126.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 proprosecution

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.

I. Denial of The Right to An Impartial Jurist

127.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.

128.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.

129.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.

130.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.

131.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,

October 13, 2016

Justin Corliss

4250 Manor Drive

Stroudsburg, PA 18360

Click here to see attachment:
https://drive.google.com/file/d/0B88pG3w3RvP0UTlvSGFLaGc2YTg/view?usp=sharing

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

L. 9/30/1998 Notes of testimony

M. 7/9/1998 Notes of testimony

N. 4/18/2008 Opinion and Order

FOOTNOTES

1 Former Chief Judge, Abner Mivko, of the U.S. Court of Appeals has stated:

"I do not think that you can get a fair child abuse trial before a jury anywhere in the country. I do

not care how sophisticated or how smart jurors are, when they hear that a child has been

abused, a piece of their mind closes up, and this goes for the judge, the jurors, and all of us ...

we do not care whether it is the right individual or not."

2 Defendant had to repeteadly seek clarification on ex parte rulings and opinions issued;

however, only the court responded, the prosecutor did not or oppose any motion, thus, nothing

barred, impeded or obstructed the Commonwealth from diligently commencing trial prior to the

expiration of Rule 600's 365 days.

3 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.

4 Though attorney Schwarz was made aware of Tsang's availability, Bompadre told the court

that he wasn't aware of her presence and Schwarz remained silent during this exchange. [N.T.

6/1/16 @19] Tsang had threatened to charge Corliss with vague criminalities as retribution for

her perceived grievances in 2010 after Corliss separated from her. [Email 6/12/10 & 6/14/10]

5 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.

6 These claims were not relevant to the last time frame convicted of but the two defendant was

acquitted of. Rakaczewski is trying to relitigate the exact same issues that were decided against

the Commonwealth in the 1998 trial. This is not anticipated under Pa.R.Evid. No. 404.

7 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.

8 It has long been established that, generally, evidence of prior sexual relations with a

Complainant is to show propensity for sexual relations with the same complainant and only

when a continuing course of conduct is pursued. Com. v. Young, 989 A.2d 920, 2009.

9 The 1998 trial testimony, as to when the afternoon claim occurred, is convoluted, largely

because Lynott and ADA Stephan recognized its impossibility due to the business hours of the

Appliance Doctor and the large plate glass window that offered plain view into the claimed room.

Now, Viglione distances her claims to account for the business hours of the Appliance Doctor - a

subtle but intentional sleight of hand.

10 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.

11 During pretrial hearing in 1998 ADA Sherri Stephan stated to the Court:

"And actually, I think the purpose for the blood test could work both ways. It could

obviously incriminate defendant, or actually exonerate him ... these arguments could be

saved if a match does come up to be this particular defendant." [N.T. 1/15/98 @3-4]

12 At the 6/16/98 hearing, judge O'Brien expressed his opinion, that can be attributed to the

suspect and unauthorized second test, that "I don't doubt you can hire an expert in this day and

age who will come to say anything under the sun." [Id. @37]

13 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.

14 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

15 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.

16 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.

17 Defendant is aware that William Spiess, Kasheen Thomas, Gene Thomas II, Jaleel Holden,

Jose Lacen were each charged with egregious sexual assault charges by Rakaczewski that

were belatedly nolle prossed when Rakaczewski finally admitted to a severe lack of reliability in

the two complainants. Rakaczewski and Lynott charged Jerimyah Rabinowitz, Gabryal

Rabinowitz and a third person with serious sex crimes only to be acquitted after the

complainants' severe lack of reliability was exposed at trial. Rakaczewski prosecuted Merle

deGroat under similar circumstances as the Appellant, in that the complainant's mother

exhibited a retaliatory animus toward deGroat and used her daughter as a proxy to exact

revenge; however, DeGroat was acquitted, exposing the lack of reliability in the complainant's

story. Additionally Rakaczewski pursued rape charges against Isidros Garces who was

acquitted due to a lack of reliability in the uncorroborated statements of a child. Garces was

similarly involved in a custody dispute. Rakaczewski has never prosecuted these complainants

for making false complaints. The only two women prosecuted were Brandy Phy and Laura

Gruver who, in 2009, were identified by competent detectives that recognized their claims as

false before more citizens could be victimized by Rakaczewski. (twelve citizens erroneously

charged with rape) At least two other citizens were similarly prosecuted by Rakaczewski and

acquitted, again, due to the complainants' lack of reliability.

18 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.

19 Michael T Rakaczewski has a pattern of deliberately omitting evidence that does not suit his

convict at any cost bias. This unethical conduct was exampled when he was sued by five boys

he maliciously prosecuted for rape, in Spiess v. Pocono Mt. Reg'l Police Dept., No. 3:10 cv 287,

U.S. Dist. Court, Middle District, PA., when Rakaczewski settled rather than have his egregious

conduct and fraud exposed in a trial. Rakaczewski also deliberately withheld a complainant's

letter in Tyreis Ford's case to coerce a plea rather than simply dismiss the case.

20 Regrettably, Michael T Rakaczewski has a pattern of facecious conduct. In the Spiess case,

supra., a number of honest detectives verified that Rakaczewski was present during the

investigatory phase, yet Rakaczewski repeteadly lied by claiming selective memory loss - a

deceit he directs his witnesses to employ. Incredulously, Rakaczewski recently refused to admit

his authorship of documents filed with the court, served on the defendant and the judge [9/29/16

SVP hearing] by disowning documents with his own signature on them! Rakaczewski needs

help, his unethical and prevaricating ways cast the pursuit of justice in jeopardy.

21 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 in violating disclosure as required under Pa.R.E. No. 404.

22 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]

23 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.)

24 Intentionally, prejudicial conduct like this is aptly summarized as:

"My apologies, Your Honor, I'll ask the jurors to disregard what I just said, which of course is

impossible and that's why I said it in the first place." John Grisham, "Gray Mountain", 2004.

25 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]

26 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.

27 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.

28 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.

29Touching, 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]

30 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.

31 Indecent assault [18§3126] establishes 'sexual gratification' as the mens rea component of

the offense. Proof of a design for sexual gratification may be established by the circumstances.

The mens rea (culpability) for aggravated indecent assault was not established here. The

criminal intent is established by our Legislature who did not include 'sexual gratification' to

establish aggravated indecent assault.

32 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. The same denial is reflected in the summary of the CAC Interview attached to

affidavit of probable cause [7/2/16] and the preliminary hearing testimony [N.T. 7/30/13@7-8].

The resulting testimony amounts to state sanctioned perjury.

33 The law in effect in 2009-2010 required proof of a blood relationship to establish incest which

was not adduced at trial. [P.L. 985, No. 10 (Spec. Sess. No. 1)(1995)]

34 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 The Commonwealth's reliance in

Com. v. Wilson, 825 A.2d 710, 2003 is misplaced. Wilson involved a mentally deficient

complainant who was subjected to forcible compulsion, the court conducted no review from a

statutory construction perspective, and relies on mere dicta from other cases that failed to

review legislative intent and design but instead inserted language our Legislature never

considered.

35 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)

36 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.

37 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.

38 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.

39 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.