IN THE COURT OF COMMON PLEAS, MONROE COUNTY, PENNSYLVANIA

COMMONNWEALTH OF PENNSYLVANIA : No. 1749 CR 2013

v : No. 2173 CR 2013

JUSTIN CORLISS, :

Defendant : Post-sentence Motions

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BRIEF IN SUPPORT OF POST SENTENCE MOTIONS

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

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

The exculpatory DNA evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Statute of Limitations

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

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

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

"Touching" vis a vis "Intercourse"

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

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

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

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

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

"Course of conduct"

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

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

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

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

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

Rule 600 - Speedy Trial

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

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

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

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

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

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

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

Deliberately Omitted Evidence - Credibility Challenges/Perjury

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

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

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

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

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

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

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

Presentence Investigation Report Challenges

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

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

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

Proportionality of the Sentence

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

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

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

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

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

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

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

Bad acts vis a vis "sufficient evidence"

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

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

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

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

Right to Allocution

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

Absence of a Colloquy at Bad Acts Hearing

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

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

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

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

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

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

VERIFICATION

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

Respectfully submitted,

November 14, 2016

Justin Corliss

4250 Manor Drive

Stroudsburg, PA 18360