IN THE SUPERIOR COURT OF PENNSYLVANIA
108 EDA 2017
COMMONWEALTH OF PENNSYLVANIA,
Appellee,
vs.
JUSTIN M. CORLISS,
Appellant.
Justin Corliss appealed from the denial of post-sentence motion,
a panel of this court affirmed on December 8, 2017
______________________________
At Cases No. 1749 & 2173 CR 2013
Monroe County Court of Common Pleas
David J. Williamson, Judge
Order in Question
On December 8, 2017 a panel of this court rendered a non-precedential decision affirming the lower court's post-sentence motion opinion regarding two distinct cases/convictions at Com. v. Corliss, No. 108 EDA 2017. [attached as Exhibit A]
Points of Law and Facts that were Overlooked or Misapprehended
1. This panel failed to sua sponte address the illegal mandatory minimum sentences imposed in violation of ex post facto prohibitions and being contrary to Alleyne v. U.S., 133 S.Ct. 2151, 2013 and Com. v. Wolfe, 140 A.3d 651 (Pa. 2016) finding the statute "irremediably unconstitutional on its face, non-severable and void." [see 1/20/17 1925(b), para. #9]
2. This panel failed to sua sponte address the punitive imposition of the Sex Offender Registration and Notification Act (SORNA) and the erroneous classification as a sexually violent predator, as being in violation of ex post facto prohibitions and the findings of Com. v. Muniz, 164 A.3d 1189 (Pa. 2017) and Com. v. Butler, 1224 WDA 2016 (applying Alleyne to repudiate any fact found by a judge and not a jury) that found SORNA to be punitive and presents a challenge to the legality of sentence. The Butler court raised Muniz issues sua sponte. [1925(b) issue #7]
3. This panel overlooked the illegal sentencing on the time barred claims in 2173 CR 2013 where the lower court failed to credit Appellant with all time served awaiting trial pursuant to 42§9760. [1925(b) issue #10]
1. This panel failed to sua sponte address the illegal mandatory minimum sentences imposed in violation of ex post facto prohibitions and being contrary to Alleyne v. U.S., 133 S.Ct. 2151, 2013 and Com. v. Wolfe, 140 A.3d 651 (Pa. 2016) finding the statute "irremediably unconstitutional on its face, non-severable and void." [see 1/20/17 1925(b), para. #9]
2. This panel failed to sua sponte address the punitive imposition of the Sex Offender Registration and Notification Act (SORNA) and the erroneous classification as a sexually violent predator, as being in violation of ex post facto prohibitions and the findings of Com. v. Muniz, 164 A.3d 1189 (Pa. 2017) and Com. v. Butler, 1224 WDA 2016 (applying Alleyne to repudiate any fact found by a judge and not a jury) that found SORNA to be punitive and presents a challenge to the legality of sentence. The Butler court raised Muniz issues sua sponte. [1925(b) issue #7]
3. This panel overlooked the illegal sentencing on the time barred claims in 2173 CR 2013 where the lower court failed to credit Appellant with all time served awaiting trial pursuant to 42§9760. [1925(b) issue #10]
Appellant raised these illegal sentencing issues below but was barred from arguing them on appeal due to word limitations; however, an illegal sentence can be raised at any time and other panels of this court have raised similar issues sua sponte recognizing the injustices.
The panel's ability to review substantive issues presented on appeal was severely compromised due the lower court's refusal and failure to address discrete issues raised in post-sentence motions and the 1925(b) statement filed, necessitating a remand to cure as the result is an abrogation of the right to appeal and a deliberate delay and thus the denial of justice.
The following issues of error were fully and properly briefed by Appellant; however, the panel erroneously adopted the misdirection and obfuscation of the trial court's opinion without reference to Appellant's argument, controlling authorities or cited facts, all of which were ignored by the lower court but uncontested by the Commonwealth. The lower court misconstrued facts and issues resulting in a fraud on this court that has gone unresolved through an abdication of fair review of the true issues briefed.
The panel's ability to review substantive issues presented on appeal was severely compromised due the lower court's refusal and failure to address discrete issues raised in post-sentence motions and the 1925(b) statement filed, necessitating a remand to cure as the result is an abrogation of the right to appeal and a deliberate delay and thus the denial of justice.
The following issues of error were fully and properly briefed by Appellant; however, the panel erroneously adopted the misdirection and obfuscation of the trial court's opinion without reference to Appellant's argument, controlling authorities or cited facts, all of which were ignored by the lower court but uncontested by the Commonwealth. The lower court misconstrued facts and issues resulting in a fraud on this court that has gone unresolved through an abdication of fair review of the true issues briefed.
There are three fundamental issues underlying the relief due:
- Can a judge relieve the Commonwealth of proving an element of crime during a jury trial?
- Does our Legislature distinguish cunnilingus/fellatio from 'sexual intercourse' because it is properly construed as indecent contact?
- When the Commonwealth elicits known to be false testimony is the defense required to cure it?
4. The panel erroneously attempted to justify the trial court's failure to properly charge the jury with the fact based element of negating limitations - an element of every crime, (accord 18§103), by relying on inapposite antique dicta that did not involve a jury trial.
Appellant has a constitutional right to a trial by jury and at no time waived that right to allow the judge to invade the province of the jury and relieve the Commonwealth of the burden to prove every element of the crimes alleged.
Protections from prosecution under the statute of limitations is a substantive right and that right may not be abrogated on the mere say-so of a judge when date facts must be established and the relevant law explained to the jury. Accord Com. v. Powers, 577 A.2d 194, 1990 ("... the trial court specifically instructed the jury that in order to convict appellant, they had to decide that the offense occurred between March 21, 1986 and September 4, 1986").
Here no evidence exists that any complainant was prevented from making their claims timely through fear, coercion or threat; thereby, any reliance on the waived by the prosecution and unproven exception under 42§5552(c)(3) is misplaced. Accord. Com. v. Louden, 803 A.2d 1181, 2000.
The panel's claim that date facts and relevant law pertaining to limitations can be decided by a judge during a jury trial is an incorrect assessment of well settled law that violates the right to a trial by jury and conflicts with directly relevant authority cited by appellant, specifically Com. v. Bethlehem, 570 A.2d 569, 1989, (alloc. denied) 525 Pa. 610, 1990. Of note is this panel's reliance on the mere dicta of Com. v. Groff, 548 A.2d 1237, 1988. The only relevant cite from Groff is that "...the ultimate question of whether the statute of limitations was violated depended upon a question of fact that was within the province of the jury." Id. @ 1246.
Sub-issue:
This panel overlooks the intent and design of the exception purportedly claimed (but actually waived) by the Commonwealth, for it does not eradicate limitations entirely, but suspends them in certain situations, not applicable here. Accord Horowitz v. Horowitz, 600 A.2d 982, 1991; Com. v. Louden, 803 A.2d 1181, 2000 (analogizing 42§5533(b)(2) and 42§5552(c)(3) as having an identical purpose). The exception does not eradicate protections afforded Appellant but commands an element of proof to invoke the exception that was not established at trial.
Sub-issue:
Though not relevant to the failure to charge the jury on limitations, the panel overlooks that the prosecution failed to assert any claimed reliance on the exception under 42§5552(c)(3) upon omnibus review and therefore waived it. Accord Com. v. Morrow, 682 A.2d 347,1996, FN2. See also Com. v. Romberger, 474 Pa. 190, 1977 (when an issue is cognizable in a given proceeding and is not raised it is waived and will not be considered on a review of that pleading). As such, the lower court directed "notice" can not act to afford the Commonwealth an exception that was not pled, met by evidence nor given to the jury to decide the relevant facts and law.
Sub-issue:
Even assuming, in arguendo, that the non-tolling exception under 42§5552(c)(3) was pled at the omnibus stage, the two charges at 2173 CR 2013 are still barred as the limitations period in 1997 (5 years) expired prior to 2013 and no evidence exists from R.V. that amounts to the violent, non-sexually arousing touching anticipated by statute to justify aggravated indecent assault (AIA). The testimony amounts to indecent contact (an element of indecent assault only) which has a two year limitations period. No court possessed jurisdiction to hear these time barred claims.
Sub-issue:
Even assuming, in arguendo, that the non-tolling exception under 42§5552(c)(3) was pled at the omnibus stage, the four charges at 1749 CR 2013 are still time barred as the two year limitations period expired in 2012 and C.C. was not yet 18 years of age nor claimed any reason to justify the exception. This panel erroneously ignores the legislative intent and plain wording of the exception set forth by Appellant in his Reply Brief.
5. The panel overlooks, misapprehends and failed to address statutory construction and legislative intent in relying on antique dicta that erroneously conflates fellatio and cunnilingus to be "sexual intercourse" which is not anticipated under IDSI or incest. Our Legislature distinguishes fellatio and cunnilingus from "sexual intercourse," [see 18§6312, Definitions; 18§5903(b) 'sexual conduct,' distinguishing acts] as the claims amount to indecent contact which is not an element of IDSI or incest. [App. brief issue #2, pps. 19-22] This may be an issue of first impression as no court has yet to address Legislative intent and statutory construction regarding the acts of fellatio and cunnilingus which are plainly intended to 'arouse or gratify sexual desire in either person' - an element of indecent assault only.
This panel cited only to dicta absent any constructive review. It is patently absurd to construe cunnilingus and fellatio as 'violent' crimes by erroneously changing the statutory term 'os' to 'oral.' The panel cites inapposite cases that involve annal penetration with a penis that was not claimed here.
6. This panel overlooked, and failed to address, the erroneous surprise instruction given to the jury that allowed them to construe "oral contact" as an element of IDSI and incest. Appellant was not on notice to defend against this conjured element that our legislature did not include as an element of IDSI or incest. [App. brief, Issue #2, p. 24] See Com. v. Taylor, 471 A.2d 1228, 1984 (erred in allowing conviction based upon conduct not included in the accusation against defendant) See also Com. v. Zheng, 908 A.2d 285, 2006 (same).
7. The panel has erroneously construed the prosecutor's duty to correct testimony by Danielle Brink, that he knew to be false, as a "Brady" claim when the facts meet those of Com. v. Romansky, 702 A.2d 1064, 1997 (that when the Commonwealth obtains a conviction by using uncorrected testimony that the prosecutor knows to be false, a miscarriage of justice, which no civilized society can tolerate, has occurred) and U.S. Supreme Court cases cited. [App. brief, Issue #3, p. 28] The facts establish Danielle Brink's testimony to be false. The panel tacitly admits the prosecutor knew, but did nothing. The discrete facts that represent proof of false testimony was completely ignored with an irrelevant focus on whether the 1998 verdict of acquittal rendered ALL of the 2016 trial testimony false. The issue of Danielle Brink's perjury is that the prosecutor had her make claims never before made and that directly conflict with evidence adduced in hearings where Brink was subject to cross examination. Appellant was never under a duty to introduce facts of Brink's perjury that were known to the Commonwealth - who elicited it, to construe otherwise is to impermissibly thrust the burden of policing the dishonest Commonwealth on the Appellant when the trial judge (who was equally aware of the perjury) sat idly by and allowed the perjury to go uncorrected.
8. The panel erroneously overlooked the subquestion to appealed Issue #3 that is properly included in the 1925(b) statement filed of record [App. Brief, Exhibit C, p. 2, Issue #4]. By erroneously relying on the lower court's refusal to address this issue the panel denies Appellant fair review thereof.
9. The panel erroneously overlooks the fact that Appellant had properly sought judicial notice below of the original exculpatory DNA report of March 9, 1998 - that was unopposed, the lower court then proceeded to misconstrue that report to fraudulently vindicate the false testimony of Danielle Brink. This panel failed to recognize that the new report of 3/1/17 merely clarifies the original DNA report that the lower court belatedly lied about in his post-sentence opinion. The original exculpatory report was 'of record' and available for review as was evidenced by the lower court's direct reference to and misconstruction thereof.
10. This panel overlooks the fact that the lower court interposed fraudulent claims of the exculpatory DNA evidence being "inconclusive" to which an expert was hired to rebut this fraud. This deliberate misconstruction was penned on ex parte claims, absent review in open court and after post-sentence motions were filed. A motion with this court, for a remand exists to properly redress this fraud; however, no action on the motion has yet issued.
11. The panel overlooks and/or misapprehends the last issue sought to be litigated regarding deliberately omitted exculpatory and credibility evidence known to the prosecutor that materially challenges C.C.'s entire story as being recently fabricated. While tacitly admitting that defense counsel was incompetent or ineffective per se for not putting on the evidence, the panel erroneously adopts another 'Brady' claim while failing to recognize the prosecutor's duty to put all known evidence and facts in front of the jury - to seek the truth. This panel tacitly ignores the sworn duty of the prosecutor and the purpose of a trial.
5. The panel overlooks, misapprehends and failed to address statutory construction and legislative intent in relying on antique dicta that erroneously conflates fellatio and cunnilingus to be "sexual intercourse" which is not anticipated under IDSI or incest. Our Legislature distinguishes fellatio and cunnilingus from "sexual intercourse," [see 18§6312, Definitions; 18§5903(b) 'sexual conduct,' distinguishing acts] as the claims amount to indecent contact which is not an element of IDSI or incest. [App. brief issue #2, pps. 19-22] This may be an issue of first impression as no court has yet to address Legislative intent and statutory construction regarding the acts of fellatio and cunnilingus which are plainly intended to 'arouse or gratify sexual desire in either person' - an element of indecent assault only.
This panel cited only to dicta absent any constructive review. It is patently absurd to construe cunnilingus and fellatio as 'violent' crimes by erroneously changing the statutory term 'os' to 'oral.' The panel cites inapposite cases that involve annal penetration with a penis that was not claimed here.
6. This panel overlooked, and failed to address, the erroneous surprise instruction given to the jury that allowed them to construe "oral contact" as an element of IDSI and incest. Appellant was not on notice to defend against this conjured element that our legislature did not include as an element of IDSI or incest. [App. brief, Issue #2, p. 24] See Com. v. Taylor, 471 A.2d 1228, 1984 (erred in allowing conviction based upon conduct not included in the accusation against defendant) See also Com. v. Zheng, 908 A.2d 285, 2006 (same).
7. The panel has erroneously construed the prosecutor's duty to correct testimony by Danielle Brink, that he knew to be false, as a "Brady" claim when the facts meet those of Com. v. Romansky, 702 A.2d 1064, 1997 (that when the Commonwealth obtains a conviction by using uncorrected testimony that the prosecutor knows to be false, a miscarriage of justice, which no civilized society can tolerate, has occurred) and U.S. Supreme Court cases cited. [App. brief, Issue #3, p. 28] The facts establish Danielle Brink's testimony to be false. The panel tacitly admits the prosecutor knew, but did nothing. The discrete facts that represent proof of false testimony was completely ignored with an irrelevant focus on whether the 1998 verdict of acquittal rendered ALL of the 2016 trial testimony false. The issue of Danielle Brink's perjury is that the prosecutor had her make claims never before made and that directly conflict with evidence adduced in hearings where Brink was subject to cross examination. Appellant was never under a duty to introduce facts of Brink's perjury that were known to the Commonwealth - who elicited it, to construe otherwise is to impermissibly thrust the burden of policing the dishonest Commonwealth on the Appellant when the trial judge (who was equally aware of the perjury) sat idly by and allowed the perjury to go uncorrected.
8. The panel erroneously overlooked the subquestion to appealed Issue #3 that is properly included in the 1925(b) statement filed of record [App. Brief, Exhibit C, p. 2, Issue #4]. By erroneously relying on the lower court's refusal to address this issue the panel denies Appellant fair review thereof.
9. The panel erroneously overlooks the fact that Appellant had properly sought judicial notice below of the original exculpatory DNA report of March 9, 1998 - that was unopposed, the lower court then proceeded to misconstrue that report to fraudulently vindicate the false testimony of Danielle Brink. This panel failed to recognize that the new report of 3/1/17 merely clarifies the original DNA report that the lower court belatedly lied about in his post-sentence opinion. The original exculpatory report was 'of record' and available for review as was evidenced by the lower court's direct reference to and misconstruction thereof.
10. This panel overlooks the fact that the lower court interposed fraudulent claims of the exculpatory DNA evidence being "inconclusive" to which an expert was hired to rebut this fraud. This deliberate misconstruction was penned on ex parte claims, absent review in open court and after post-sentence motions were filed. A motion with this court, for a remand exists to properly redress this fraud; however, no action on the motion has yet issued.
11. The panel overlooks and/or misapprehends the last issue sought to be litigated regarding deliberately omitted exculpatory and credibility evidence known to the prosecutor that materially challenges C.C.'s entire story as being recently fabricated. While tacitly admitting that defense counsel was incompetent or ineffective per se for not putting on the evidence, the panel erroneously adopts another 'Brady' claim while failing to recognize the prosecutor's duty to put all known evidence and facts in front of the jury - to seek the truth. This panel tacitly ignores the sworn duty of the prosecutor and the purpose of a trial.
Concise Statement
The bulk of the misapprehensions and overlooking of facts/issues actually raised in post-trial motions and argued on appeal are resultant of the panel being materially misled by the trial court's misplaced advocacy for the prosecution. The lower court has an inherent interest to vindicate himself - even if it means obfuscating facts and law - after the fact - to do so. This panel's abject deviation from what Appellant sought review of is shocking as the opinion amounts to a partisan obstruction of justice and an exercise in futility as the panel relied entirely on the challenged claims of the lower court. Beyond this, the most striking result of the panel's opinion is the utter dearth of review of the prosecutor's duty to seek the truth with known and corroborated evidence of C.C.'s lies. Plainly, the lower court deliberately ignored anything that would impinge on the prosecutor's conduct - this is the hallmark of a biased judge that warrants recusal.
Relief Sought
The trial court's post sentence opinion mischaracterized the discrete issues raised in post-sentence motions depriving this court of an opportunity to resolve issues on appeal. This matter should be remanded for the lower court to properly address the issues raised in Appellant's statement of matters complained of and to conduct a hearing to determine why the court materially misrepresented the exculpatory DNA evidence as sought by Appellant previously.
The trial court specifically refused to address the prosecutor's duty to seek the truth and disclose to the jury facts he was aware of that conflict with his witness's testimony, the trial court should be compelled to address these facts to aid this court in resolving issues before it.
This court's review was impaired as being through the skewed perspective of the lower court's self vindication, this alone demands an impartial review of the issues below not burdened by the fear of reversal but towards justice.
The lower court should be required to produce evidence that the exception to limitations was pled on review of the omnibus proceedings, and if so, what evidence was produced at trial to justify it's application to the cases argued and how that was proven to the jury beyond a reasonable doubt, notwithstanding that the evidence adduced at trial only proves that the limitations periods did in fact expire prior to Appellant being charged.
The December 8th Opinion by this court should be withdrawn to allow for inclusion and review of the issues stated herein with the implicit understanding that the trial court's opinion is fatally flawed.
Such relief is sought in the interests of justice.
Respectfully submitted,
December 18, 2017
Justin Corliss, MU6240
SCI Coal Township
1 Kelley Drive
Coal Township, PA 17866
Exhibits:
- 12/8/2017 Superior Court Opinion
- 12/15/2016 Opinion Denying Post-Sentence Motion
- 1/20/2017 Statement of Matters Complained of on Appeal
- Com. v. Bethlehem, 570 A.2d 563, 1989
- Com. v. Taylor, 471 A.2d 1228, 1984
