Com. v. Guarrasi, J. ( 2016 )

J-S64009-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH PETER GUARRASI
Appellant No. 3514 EDA 2015
Appeal from the PCRA Order Dated October 20, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0005423-2004
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 15, 2016
Appellant Joseph Peter Guarrasi appeals from the October 20, 2015
order of the Court of Common Pleas of Bucks County (“PCRA court”), which
denied his request for collateral relief under the Post Conviction Relief Act
(the “Act”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts underlying this case are undisputed.1 Briefly, Appellant was
a practicing attorney who maintained an office on York Road in Bucks
County. He devised a scheme to defraud insurance companies by staging
automobile accidents. To this end, Appellant attempted to elicit the aid of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Unless otherwise specified, these facts come from this Court’s July 6, 2006
decision. See Commonwealth v. Guarrasi, No. 1796 EDA 2005,
unpublished memorandum, at 1-2 (Pa. Super. filed July 6, 2006) (citing Trial
Court Opinion, 8/25/05, at 3).
J-S64009-19
others to engage in this fraud and file false claims. He also purchased a
home in Doylestown that he planned to renovate into a “Kama Sutra” sex
club. Because of problems with the real estate transactions, and failed
attempts to evict tenants from the properties, Appellant solicited Michael
Samios to kidnap, assault, and “make disappear” the resident of the house
he intended for the Kama Sutra club. After becoming frightened of the plan
and the nature of Appellant’s instructions, Samios contacted and cooperated
with the authorities. Samios was wired by investigators for the District
Attorney, and several conversations between him and Appellant were
intercepted and recorded.
On March 28, 2005, Appellant entered a plea of nolo contendere to
criminal attempt to commit homicide and pled guilty but mentally ill to
charges of criminal intent to commit aggravated assault, attempt to commit
kidnapping, attempt to commit unlawful restraint, attempt to commit false
imprisonment, attempted burglary and criminal solicitation to promote or
facilitate insurance fraud. On June 8, 2005, Appellant was sentenced to six
and one-half to fifteen years’ imprisonment. On July 6, 2006, we affirmed
Appellant’s judgment of sentence. See Commonwealth v. Guarrasi, 907
A.2d 1133 (Pa. Super. 2006). Appellant did not file a petition for allowance
of appeal. Consequently, his judgment of sentence became final on August
5, 2006. On June 29, 2007, Appellant filed the instant, timely PCRA petition,
which was amended multiple times thereafter. Following sixteen days of
PCRA hearing, spanning over a six-year period, the PCRA court denied
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Appellant’s PCRA relief. In support of its denial of Appellant’s PCRA petition,
the PCRA court issued a 112-page opinion. Appellant timely appealed to this
Court. Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion,
largely incorporating its October 20, 2015 opinion denying Appellant’s PCRA
petition.
On appeal,2 Appellant raises six issues for our review, reproduced here
verbatim:
1. Did the [PCRA c]ourt err or abuse it’s discretion by denying
PRCA relief based on 42 Pa.C.S.A. Section 9543(b) prejudice to
the District Attorney’s Office (“DAO”) from the death of Samios
when, after the death of Samios, the [PCRA c]ourt Ordered that
Section 9543(b) prejudice did not insure against the DAO
resulting from Samios’ death, the DAO testified that whole case
rested on the Wiretaps and the Wiretaps are in evidence,
[Appellant] testified to due diligence and that PCRA delays
violated [Appellant]’s rights, and then four (4) years later,
contrary to the plain language of 42 Pa.C.S.A. Section 9543(b),
Commonwealth v. Renchenski, 52 A.3d 251 (Pa. 2012) and
stare decisis, the [PCRA c]ourt reversed it’s prior ruling without
conducting the required Section 9543(b) hearing for the DAO to
present prejudice resulting from delays in [Appellant]’s filing of
the PCRA Petition or Amended Petition?
2. Did the [PCRA c]ourt err or abuse it’s discretion by denying
PCRA relief based upon Judge Cepparulo not recusing when, his
failing health caused PCRA hearing delays and his early
retirement, motion left unadjudicated for years,
misapprehending or ignoring facts of record, misquoting Wiretap
Law, misapplying PCRA and Wiretap Law, finding credible former
ADA Gambardella and Detective Carroll contrary to their
demonstrable perjury, including 2/27/2004 Jurat Affiant
presence, Wiretap transcript existence, Wiretap contents,
____________________________________________
2
“On appeal from the denial of PCRA relief, our standard of review requires
us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error.” Commonwealth v. Widgins, 29 A.3d 816,
819 (Pa. Super. 2011).
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Wiretap errors and causes, and the alleged $2000 payment and
forfeiture order, accepting lay witness testimony on mental
illness as if accepted as experts, violating Stare Decisis and
conflicts of interests?
3. Did the [PCRA c]ourt err or abuse it’s discretion by denying
PCRA relief based upon [Appellant]’s presented incompetence
when, and involuntary, unknowing and unintelligent plea was
caused by an innocent seriously mentally ill [Appellant]
subjected to an involuntary cessation of all prescribed
medications for several days before the plea, at the plea
exhibited signs of mental illness, contemporaneous psychiatry
progress notes record [Appellant] with probable delusions,
judgment and insight poor, and Dr. Cohen testified and opined
that the [Appellant] would have experienced a sling-shot effect
of serious bipolar with delusions, psychosis and fugue state, and
Judge Biehn found [Appellant] seriously mentally ill, in need of
prescribed medications, and sentenced [Appellant] to serve
some or all of his sentence in a mental facility, but contrary to
expert testimony the court accepted lay persons opinions on
mental illness?
4. Did the [PCRA c]ourt err or abuse it’s discretion by denying
PCRA relief based upon the presented defective guilty plea
colloquy when, the [Appellant] was not present for the general
colloquy as he was meeting in the holding cell with Attorney
Tauber, no facts were contemporaneously read into the record
for the seriously mentally ill unmediated [Appellant], but instead,
Judge Beihn incorporated by reference a document authored by
defense counsel–which refuted the existence of a corpus delecti,
and then gave incorrect instructions of the Law, the [Appellant]
pled unaware of affirmative defenses including a lack of corpus
delecti, Wiretap violations, and the renunciation of any possible
crimes, as Tape 6 only has money paid for a truck title, Tape 9
has no words of “kill” or any other words of violence, and Tape
10 ends mid-sentence with directions for Samios to ignore
everything and to just get work finished at the Bar in Maryland,
all contrary to DAO testimony, and then two (2) months later at
Sentencing, DAO switched the “incorporated” document by
reading into the record an unfiled document authored by former
ADA Gambardella, not read by the [Appellant], the [Appellant]
was never asked if he agreed with those facts, and the ADA
document read at Sentencing lacked corpus delecti for all the
elements of the crimes charged?
5. Did the [PCRA c]ourt err or abuse it’s discretion by denying
PCRA relief based upon the presented Wiretap Act violations, and
Constitutional violations when, the [PCRA c]ourt, by misquoting
and misapplying the Law, found compliant and without violation,
Wiretaps made in Maryland because they were ``initiated’ in
Bucks County, Monitor Records created six (6) years after
conviction because it was not “applicable” until then, multiple
undisclosed errors in Wiretap recording, dating, custody and
copying because they were “unintentional”, a 18 Pa.C.S.A.
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Section 5704(a)(2)(ii) ADA designation used in the absence of a
18 Pa.C.S.A. Section 5704(2)(a)(iv) designation, the
administrative criminal Judge was accepted as the unwritten
unspoken President Judge’s designee, the Wiretap “order” that
purported to authorize Wiretaps in ‘any home, residence or place
of abode of the [Appellant] or anywhere conversations may take
place’, found not overbroad but specific enough, the DAO’s
press-conferences that disclosed Wiretap Tape contents in
excess of court filings not a violation because court filings are
public, and an Wiretap affidavit Jurat in which the Affiant did not
sign or swear to the underlying facts in front of the issuing Judge
not a violation because the Affiant’s co-worker signed it in front
of the Judge?
6. Did the [PCRA c]ourt err or abuse it’s discretion by denying
PCRA relief based upon [c]ounsel’s deficient performance when,
[c]ounsel failed to undertake a reasonable investigation as he
failed to identify Wiretap Act violations as he failed to listen to
the Wiretap tapes but instead relied upon a non-law-trained
private investigator to inform him of the Wiretap contents,
[c]ounsel failed to follow-up with requested discovery as he
failed to discover that the second (2) copy set of Wiretap Tapes
were more defective that the first (1) copy set, and he failed to
obtain a written transcription of the Wiretap tapes, [c]ounsel
failed to litigate a filed meritorious Wiretap suppression motion
as he failed to know that tape 6 containing the alleged corpus
delecti was orally dated outside the Wiretap order, testifying that
if he knew Tape 6 was orally dated outside the Wiretap order he
definitely would have litigated the suppression motion and won,
[c]ounsel failed to object or correct a defective colloquy,
[c]ounsel was paid $250,000.00, and [c]ounsel outright lied to
[Appellant] to induce a guilty plea?
Appellant’s Brief at 4-7.3
____________________________________________
3
Appellant’s second issue is waived because, as the PCRA court noted, he
raised it for the first time in his Rule 1925(b) statement. See Pa.R.A.P.
302(a); Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Melendez–
Rodriguez, 856 A.2d 1278, 1287 (Pa. Super. 2004) (en banc) (holding
issues raised for first time in 1925(b) statement waived); accord
Commonwealth. v. Tejada, 107 A.3d 788, 790 (Pa. Super. 2015); see
also Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011)
(“It is well-settled that issues not raised in a PCRA petition cannot be
considered on appeal.”) (internal quotation marks and citation omitted),
appeal denied, 30 A.3d 487 (Pa. 2011). Moreover, we note that
Appellant’s third, fourth and fifth issues on appeal are also waived because
(Footnote Continued Next Page)
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After careful review of the record, and the relevant case law, we
conclude that the PCRA court accurately and thoroughly addressed the
merits of Appellant’s only two issues preserved for appeal, his first and last
issues. See PCRA Court Rule 1925(a) Opinion, 01/07/16, at 2-4; PCRA
Court Opinion, 10/20/15, at 72-110. Accordingly, we affirm the PCRA
court’s October 20, 2015 order.4 We further direct that a copy of the PCRA
court’s January 7, 2016 Rule 1925(a) Opinion and its October 20, 2015
opinion be attached to any future filings in this case.
Order affirmed. Motion for appellate judicial notice denied.
_______________________
(Footnote Continued)
they could have been raised on direct appeal. Under the PCRA, “an issue is
waived if the petitioner could have raised it but failed to do so before trial, at
trial, during unitary review, on appeal[,] or in a prior state postconviction
proceeding.” 42 Pa.C.S.A. § 9544(b); see Commonwealth v. Ford, 809
A.2d 325, 329 (Pa. 2002) (holding that petitioner’s claims of trial court error,
constitutional error, and prosecutorial misconduct, which could have been
raised on direct appeal but were not, were waived under the PCRA). To the
extent any of the issues could have been considered on collateral review, we
dispose of them on the basis of the PCRA court’s Rule 1925(a) opinion and
its October 20, 2015 opinion.
4
We deny Appellant’s July 18, 2016 “Motion for Appellate Judicial Notice.”
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Circulated 11/04/2016 02:21 PM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-09-CR-0005423-2004
V.
JOSEPH GUARRASI
OPINION
I. INTRODUCTION
Appellant, Joseph Guarrasi (Petitioner), has appealed to the Superior Court of Pennsylvania
from this Court's Order of October 20, 2015 denying and dismissing his Amended Post-Conviction
Relief Act ("PCRA") Petition which was originally filed on June 29, 2007, pursuant to 42 Pa.C.S.
§ 9541 et. seq., and amended numerous times thereafter. We file this Opinion pursuant to
Pennsylvania Rule of Appellate Procedure ("Pa.R.A.P.") l 925(a).
II. FACTUAL AND PROCEDURAL BACKGROUND
The relevant factual and procedural history underlying this matter has been extensively set
forth, most recently in our Opinion which accompanied our Order of October 20, 2015. A copy of
our Opinion and Order is attached hereto as "Exhibit A." Petitioner filed a timely Notice of Appeal
from that Order on November 18, 2015. On November 20, 2015, this Court issued an Order
pursuant to Pa.R.A.P. 1925(b) directing Petitioner to file a statement of errors complained of on
appeal. On December 3, 2015, Petitioner filed his Statement of Errors Complained of on Appeal
Pursuant to Pa.R.A.P. l 925(b).1 A copy of that Statement is attached hereto as "Exhibit B."
I
Petitioner sent a copy of his Statement of Errors and accompanying cover letter,_whicb were both dated November
17, 2015, to this Court's Chambers, which were then received sometime after we had issued our 1925(b) Order on
November 20, 2015. Petitioner thereafter reissued his Statement of Errors by correcting the date to reflect December
3, 2015.
Page 1 of 4
.-,.
III. ERRORS COMPLAINED OF ON APPEAL
The six (6) issues identified in Petitioner's Statement of Errors may be summarized as
follows:
(1) It was an abuse of discretion to deny Petitioner PCRA relief, pursuant to 42
Pa.C.S.A. § 9543(b), based upon prejudice to the Commonwealth resulting from
the death of one of the principle witnesses, Michael Samios;
(2) It was an abuse of discretion to deny Petitioner PCRA relief "based upon
Judge Cepparulo not recusing" himself when his failing health caused inter alia
PCRA hearing delays, his early retirement, motions left unadjudicated,
misapplication of the law and faulty credibility findings;
(3) It was an abuse of discretion to deny Petitioner PCRA relief due to alleged
statutory and Constitutional violations involving the Wiretapping and Electronic
Surveillance Act, 18 Pa.C.S. § 5701, et seq. ("the Wiretap Act");
(4) It was an abuse of discretion to deny Petitioner PCRA relief based upon
"Counsel's deficient performance" as a result of inter alia failure to investigate and
attempt to suppress the Wiretap Act communication intercepts;
(5) It was an abuse of discretion to deny Petitioner PCRA relief due to
"defendant's presented incompetence" which resulted in his "involuntary,
unknowing and unintelligent plea caused by an innocent seriously mentally ill
defendant subjected to an involuntary cessation of all prescribed medications for
several days prior to the plea;" and
(6) It was an abuse of discretion to deny Petitioner PCRA relief "based upon
the presented defective guilty plea colloquy when, the defendant was not present
for the general colloquy."
IV. ANALYSIS
Following the sixteen (16) days of PCRA evidentiary bearings, this Court issued an Order
on August 11, 2014, directing Petitioner to serve upon the Commonwealth and this Court a
standard appellate brief "outlining any and all issues cognizable under the PCRA statute." (Order,
8/11/14.) Petitioner complied with our Order and submitted a sixty five (65) page "Brief for
Page 2 of 4
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Defendant" on September 4, 2014, in which he identified five (5) questions/issues, which are
summarized as follows:
1) Ineffective assistance of counsel which caused a "severely mentally ill
defendant, unmedicated for several days," to enter an involuntary and unknowing
guilty plea;
2) Ineffective assistance of counsel for failure to correct "a patently defective
guilty plea colloquy, where defendant wanted to go to trial, unaware of available
affirmative defenses;"
3) Ineffective assistance of counsel which caused defendant to enter an
"involuntary and unknowing plea by failing to litigate an intercept suppression;"
4) Ineffective assistance of counsel which caused defendant to enter an
"involuntary and unknowing plea by failing to undertake a reasonable
investigation, unaware of law fundamental to the case, abandoning requested
discovery, and stipulating to false facts;" and
5) PCRA hearing delays violated defendant's due process rights such that the
District Attorney's Office was precluded from alleging prejudice as a result of Mr.
Samios' death.
All of the five issues identified above from Petitioner's September 4, 2014 Brief have been
extensively discussed and addressed in our Opinion of October 20, 2015, which as noted has been
attached hereto as Exhibit A.
In addition, Petitioner now alleges that he was "not present for the general colloquy" and
that this Court's failure to recuse itself resulted in PCRA hearing delays,. unadjudicated motions,
misapplication of the law and faulty credibility findings.
It is well-established that an issue is waived if the appellant "could have raised it but failed
to do so before trial, at trial, . . . on appeal or in a prior state postconviction proceeding."
Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014) (citing Commonwealth v. Rainey, 928 A.2d
215, 223 (Pa. 2007); 42 Pa.C.S.A. § 9544(b)). Despite the lack of any evidentiary support for
Petitioner's bald allegations as well as his refusal to acknowledge that he has been responsible for
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the delay and continuation of these PCRA evidentiary hearings over the preceding nine years,
Petitioner failed to raise or address these issues in these PCRA proceedings and we therefore
consider them waived.
V. CONCLUSION
As noted in our Opinion and Order of October 20, 2015, we believe after a thorough review
of the complete record that Appellant's PCRA allegations are meritless and Petitioner is not
entitled to relief pursuant to the PCRA.
-=---="·.
Albert J. Cepparulo, Judge
*=
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COMMONWEAL TH OF PENNSYLVANIA vs. JOSEPH GUARRASI
NO. CP-09-CR-0005423-2004
Copies sent to:
Joseph Guarrasi
Inmate No. GF64 l O
SCI BENNER TOWNSHIP
301 Institution Drive
Bellefonte, PA 16823
Defendant Pro Se
Karen Diaz
Office of the District Attorney
BUCKS COUNTY JUSTICE CENTER
100 North Main Street
Doylestown, PA 18901
Attorneyfor Commonwealth
EXHIBIT A
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-09-CR-0005423-2004
v.
JOSEPH GUARRASI
ORDER
'
AND NOW, this v-~ ()-ii lday of October, 2015, it is hereby ORDERED and DECREED that
the Post-Conviction Relief Act ("PCRA") Petition of Petitioner, Joseph Guarrasi, filed on June 29,
2007, and Amended on February 3, 2010, is hereby DENIED and DISMISSED.
Petitioner shall have thirty (30) days from the date of this Order in which to file an
Appeal to the Superior Court of Pennsylvania.
BY THE COURT:
f ,-. • \ ,_._-.: \..! .
0 .J .•
--
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-09-CR-0005423-2004
v.
JOSEPH GUARRASI
OPINION AND ORDER
I. INTRODUCTION
Pending before this Court is Appellant/Petitioner Joseph Guarrasi's timely Post-Conviction
Relief Act ("PCRA") Petition, filed on June 29, 2007, pursuant to 42 Pa.C.S. § 9541 et. seq., and
amended nwnerous times thereafter, as set forth at length below. Upon careful consideration of
the facts of the instant case, derived from the evidence submitted throughout the sixteen (16) days
of PCRA evidentiary hearings spanning over a six (6) year period, 1 the plain language of the PCRA
statute, applicable caselaw, and the reasons stated herein, we enter the attached Order denying and
dismissing Appellant's PCRA Petition.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying conviction were set forth by our retired colleague, the
Honorable Kenneth G. Biehn ("Judge Biehn"), in his August 25, 2005 Opinion as follows,
verbatim:
Guarrasi was a practicing attorney who maintained an office on York Road in
Bucks County. He devised a scheme to defraud insurance companies by staging
automobile accidents. To this end, Guarrasi attempted to elicit the aid of others to
engage in this fraud and file false claims. He also purchased a home in Doylestown
[Borough] that he planned to renovate into a 'Kama Sutra' sex club. Because of
problems with the real estate transactions, and failed attempts to evict tenants from
I Three (3) additional hearings were held pursuant to motions and other matters relating to this PCRA litigation.
Page 1 of 112
the properties, Guarrasi solicited Michael Samios to kidnap, assault, and 'make
disappear' the resident of the house intended for the Kama Sutra club. After
becoming frightened of the plan and the nature of Guarrasi' s instructions, Samios
contacted and cooperated with the authorities. Samios was wired by investigators
for the District Attorney, and several conversations between him and Guarrasi were
intercepted and recorded.
Trial Court Opinion, 8/25/05.
Based upon the extensive and interwoven fact pattern that underlies Appellant's conviction
in the instant case, this Court carefully reviewed both the defense and the Commonwealth's
exhaustive recitation of the relevant factual background, and we found the District Attorney's
recitation to be more in accord with the facts to which Appellant pied guiltylnolo contendere.
Accordingly, we have referenced only the Commonwealth's recitation of the facts. This recitation
was largely based on the facts read into the record at Appellant's Guilty but Mentally
Ill/Sentencing Hearing, as stipulated to by the parties, memorialized in a "Habeas Corpus"
document, and entered into evidence as the Court's Exhibit 1.
For purposes of this Opinion, it is important to add that, following our independent review
of the recordings following the close of the PCRA proceedings, the intercepted conversations
proved particularly incriminatory and evidenced Appellant's criminal intent to commit insurance
fraud as well as the crimes involving the planned establishment of his "sex club."
On March 2, 2004, Appellant was arrested and charged with fourteen (14) counts of
Criminal Attempt,2 including Criminal Attempt to Commit Murder;' Aggravated Assault,4 and
Kidnapping,5 as well as other related charges. Appellant was also charged with ten (10) counts of
2
18 Pa.C.S. § 90l(a).
3 18 Pa.C.S. § 90l(a) § 250l(a).
4
18 Pa.C.S. § 90J(a) § 2702(a)(l).
5 18 Pa.C.S. § 90l(a) § 290I(a)(2)&{3).
Page 2 of112
---,
Criminal Solicitation? to commit Murder, Aggravated Assault and Kidnapping and related, less
serious crimes.
On March 28, 2005, Appellant entered both an open nolo contendere plea to Criminal
Attempt to Commit Murder and a guilty but mentally ill (GBMI) plea to Criminal Attempt to
Commit Aggravated Assault, Kidnapping, Unlawful Restraint, Burglary, and Criminal Solicitation
to Commit Insurance Fraud before Judge Biehn. At the request of the District Attorney, this Court
nolle prossed Count Ten (I 0) through Count Eighteen (18) of the criminal information. The Court
deferred acceptance of the plea and the subsequent sentencing pending a mental health evaluation
to aid the court in determining whether Appellant was indeed mentally ill when he committed the
offenses for which he was charged. See N.T. 3/28/05, pp. 19, 21-22.
Judge Biehn proceeded with Sentencing on May 25, 2005. Prior to the sentencing portion
of this hearing, the Court heard testimony from mental health professionals in order to determine
whether the Appellant (1) was severely mentally ill at the time of the commission of the instant
offense(s) and (2) is severely mentally disabled and in need of treatment so as to support a plea of
guilty but mentally ill pursuant to the Mental Health Act and 18 Pa.C.S. § 314(b). See N.T. 5/25/05,
pp. 2-3, 32-36. Upon consideration of a number of reports and testimony from mental health
experts opining that Appellant meets the "guilty but mentally ill" threshold, the Court found
Appellant to be guilty but mentally ill and, accordingly, accepted Appellant's plea. See N.T.
5/25/05, pp. 88-89.
Appellant was thereafter sentenced to not less than six-and-a-half (6 Yi) nor more than
fifteen (15) years' incarceration.7 At the time of sentencing, Judge Biehn did not elaborate on
6 18 Pa.C.S. § 902(a).
7
The Sentencing Guidelines called for a sentence of four (4) to five (5) years' incarceration in the mitigated range,
five (5) to six-and-a-half (6 ~) years' incarceration in the standard range and six-and-a-half (6 Yz) to seven-and-a-
Page 3 of 112
exactly which count or counts of the information Appellant was being sentenced, nor was there a
delineation on the court sheet. However, prior to imposing sentence Judge Biehn referred to the
Sentencing Guidelines on Count 1- Criminal Attempt to Commit Murder. N.T. 5/25/05, p. 90.
Therefore, we believe that sentence was imposed on Count 1, and we have recognized that this
would have been in fact a lawfully imposed sentence. See N.T. 1/23/08, pp. 4-5.
Appellant filed a Post-Sentence Motion to Modify Sentence on May 27, 2005, which was
denied without a hearing by Order dated May 27, 2005. This Court, however, entered a subsequent
Order on June 9, 2005, giving Appellant credit for ten (10) months and eight (8) days for time
served at the Bucks County Correctional Facility (BCCF) prior to his sentencing and, additionally,
twenty-four (24) days for time spent at Friend's Hospital.
Appellant was represented by Richard Fink, Esquire (Fink) at his preliminary hearing, in
pre-trial motions, at his guilty plea and sentencing, and throughout the disposition of post-sentence
motions.
On June 24, 2005, Appellant filed a Notice of Appeal to the Superior Court of
Pennsylvania. On July 22, 2005, he filed a Statement of Matters Complained Of on Appeal, raising
solely the issue of the discretionary aspects of his sentence. Appellant was represented by Alan J.
Tauber, Esquire (Tauber) for purposes of his direct appeal.8
The Superior Court of Pennsylvania affirmed Appellant's judgment of sentence on July 6,
2006. See Commonwealth v. Guarrasi, 907 A.2d 1133 (Pa.Super. 2006) (table). Appellant did not
seek review with the Supreme Court of Pennsylvania. As a result, Appellant's judgment of
half {7 ~) years' incarceration in the aggravated range. Appellant did not have a prior record score. N.T. 5/25/05,
p. 90.
8
Appellant filed numerous motions shortly after the filing of his direct appeal including a Motion for Return of
Seized Property, a prose Motion for Return of Property and a "Praecipe Under B.C.R.C.P. 208.3(a)."
Page 4 of 112
conviction and sentence became final on August 5, 2006, and he therefore had until August 5,
2007 to file a timely PCRA Petition. See 42 Pa.C.S. § 9545(b)(l).
Appellant filed the instant timely prose PCRA Petition on June 29, 2007. Thereafter, the
Bucks County Public Defender's Office was appointed to represent Appellant.
Following the appointment of counsel, Appellant filed pro se the following Motions
between July 2007 and October 2007: "Misconduct of D.A. for Willful and Gross Negligence;"
"Motion for Formal Discovery;" "Motion for Return of Property;" "Motion for Judicial Notice;"
"Notice of Typographical Error in PCRA;" "Motion to Compel Discovery and Impose Sanctions;"
a "Motion for Contempt;" "Appeal from the District Attorney's Failure to Charge;" "Motion to
Compel Answer to Petitioner's PCRA;" and "Appeal from DAs Failure to Charge."
On November 27, 2007, the Public Defender's Office filed a Petition for Appointment of
Private Counsel due to a conflict of interest. As a result, Ron Elgart, Esquire, was appointed to
represent Appellant on December 5, 2007. On December 13, 2007, Attorney Elgart filed a Motion
to Vacate Order and Appoint Private Counsel.
Despite the fact that Appellant had two experienced criminal defense attorneys appointed
successively on his behalf, he continued to file pro se motions from December 2007 through
January 2008, including a "Motion for Contempt of Court," a second "Motion to Compel Answer
to Petitioner's PCRA," a "Motion for Continuance and Appointment of New Conflict Counsel,"
and a "Motion for Recusal and Change of Venue."
On January 23, 2008, a hearing was held on the numerous motions at which Appellant was
provided with the opportunity to testify in furtherance of those motions. Based on the voluminous
nature of the issues raised in Appellant's initial pro se Petition, we handled only preliminary
Page 5 of 112
matters at this hearing in order to create an opportunity for Attorney Elgart to meet with Appellant
to further refine the PCRA claims.
Following the presentation of evidence and the conclusion of arguments of counsel, this
Court denied the following: "Motion to for Appointment of New Conflict Counsel"; "Motion to
Recuse Judge Cepparulo and Motion to Disqualify the entire Bucks County Bench"; "Motion for
Discovery"; and "Petition for Return of Property." See N.T. 1/23/08, pp. 9-47, 48-9, 51-59, 61-
77, 89-91. In his "Petition for Return of Property," Appellant had requested the return of all
property seized by the Commonwealth following his arrest. In denying this Motion, this Court
reasoned that "[i]f in fact Mr. Guarrasi is entitled to relief, it may well be that relief would entail
some type of new trial, and if he is entitled to relief and if that relief involves a new trial, obviously
the Commonwealth would need the evidence which it seized ... " N. T. 1/23/08, p. 90.
On February 8, 2008, Appellant filed a "Concise Statement of P.C.R.A. Issues" on his own
volition. These "concise" claims are as follows: (1) Defective Guilty Plea Colloquy; (2) Lack of
Subject Matter Jurisdiction; (3) Ineffective Assistance of Counsel; and (4) Prosecutorial
Misconduct. See "Concise Statement," 2/8/08, ,r,r I-IV.
On February 26, 2008, Attorney Elgart filed a second Motion to Vacate Order of
Appointment, alleging that Appellant had filed a civil complaint against him which created an
inherent conflict of interest and made his continued representation of Appellant impossible. This
Motion was granted on March 12, 2008, and Harry J. Cooper, Esquire, was appointed to represent
Appellant.
On June 26, 2008, November 24, 2008, and December 19, 2008, three (3) counseled PCRA
evidentiary hearings were held, in which testimony was received from Appellant, his guilty plea
Page 6 of 112
..---.
and sentencing counsel, Fink, and one of the investigating officers, Bucks County Detective
Timothy Carroll (Detective Carroll or Carroll).
At the conclusion of the third day of testimony, Mr. Cooper was instructed to submit a brief
within forty-five (45) days from his receipt of the requisite Notes of Testimony. Following the
submission of Appellant's brief, the Commonwealth was instructed to file a reply brief within
thirty (30) days. This Court noted that we would then render a decision unless further testimony
was necessary, in which case another hearing would be scheduled.
Despite Mr. Cooper's representation, Appellant continued to file numerous prose motions,
including a Pro Se Entry of Appearance and Motion for Conference/Experts on June 10, 2008; a
Motion for Removal of Counsel on June 20, 2008; a Motion for Grazier Hearing and Colloquy on
October 27, 2008; a Motion to Develop the Record with Exculpatory Brady Evidence of
Prosecutorial Misconduct on December 17, 20089; and a Motion for Recusal and Change of Venue
on February 12, 2009.
On February 19, 2009, Mr. Cooper filed a Motion for Leave to Withdraw Appearance.
On January 14, 2009, in the midst of the preparation of briefs in support of or opposition
to Appellant's instant PCRA Petition, Appellant filed a Notice of Appeal to the Superior Court of
Pennsylvania, without assistance from his appointed counsel, in which he raised the following
issues: Appellant's request to proceed pro se, this Court's refusal to recuse ourselves, and this
Court's denial of change of venue. On April 16, 2009, we issued an Opinion in which we
9
This Motion was forwarded to Appellant's attorney of record- Mr. Cooper.
Page 7 of 112
determined that Appellant's appeal was not ripe for adjudication, as there had been no final
decision regarding his PCRA Petition.!?
On April 7, 2009, Appellant filed a Petition for Payment of Expert Witness, and on April
29, 2009, this petition was granted.
On April 23, 2009, Michael Goodwin, Esquire, was appointed to represent Appellant.
On May 8, 2009, this Court issued an Order directing Appellant to file a brief within ninety
(90) days in support of his instant PCRA Petition and the evidentiary hearings held thereon. We
also directed the Commonwealth to file a responsive brief within thirty (30) days from the date of
receipt of Appellant's brief. 11
On June 12, 2009, Attorney Goodwin filed a "Petition to Vacate Appointment of Conflict
Counsel." In his Petition, Mr. Goodwin alleged that within two (2) years prior to the offenses
underlying the charges against Appellant, Attorney Goodwin had been appointed to represent
another Appellant in a different criminal matter who had previously consulted Appellant, and
based upon information provided by this criminal Appellant and his wife, Attorney Goodwin had
reported a potential ethical violation by Appellant to the Bucks County District Attorney's Office.
See Petition to Vacate Appointment of Conflict Counsel, 6/12/09, 1~ 2-3.
An in-person PCRA evidentiary hearing was scheduled for August 13, 2009. On August
7, 2009, however, Appellant filed a Motion for Video Hearing. In order to accommodate
Appellant's request, a video hearing was therefore scheduled for October 1, 2009, at which, upon
consideration of Appellant's numerous requests to proceed pro se via written motions, in-court
10
The Superior Court of Pennsylvania issued a non-precedential and unpublished Memorandum Opinion on March
30, 2010, quashing Appellant's appeal. See Commonwealth v. Joseph Guarrasi, 996 A.2d 542 (Pa.Super. 2010)
(table).
II
All relevant Notes of Testimony were filed as of the date of this Order. The briefs were never filed, however, based
upon our granting of Appellant's request to proceed prose, as will be explained in detail below.
Page 8 of 112
-e--.
requests and otherwise, we held a hearing pursuant to Commonwealth v. Grazier.12 At this hearing,
and following a formal colloquy on the matter, this Court determined that Appellant was making
a knowing, intelligent and voluntary waiver of his right to counsel on this first PCRA Petition. We
accordingly granted Appellant's request to proceedprose via written Order dated October 1, 2009,
and simultaneously granted Mr. Goodwin leave to withdraw as counsel. We further ordered
Appellant to file a Petition to Open his PCRA Proceedings within thirty (30) days of the date of
the order, and granted the Commonwealth a thirty (30) day period to file a response following
receipt of Appellant's Petition.
On October 26, 2009, Appellant filed a "Motion for Disclosure of Intercepted
Communications," to which the Commonwealth filed a response on March 9, 2010. On March 18,
2010, Appellant filed a "Reply with New Matter to Commonwealth's Answer to Petitioner's
Motion for Required Disclosure of Intercepted Communications."
On November 4, 2009, Appellant filed a "Petition to Open Further Proceedings and/or New
Proceedings," alleging that he had additional "meritorious causes of action" which he wished to
raise, including "Defective Guilty Plea Colloquy, Ineffective Assistance of Counsel, Prosecutorial
Misconduct and proceeding in a Tribunal in which venue and jurisdiction is in question." See
Petition to Open, 11/02/09, p. 5.
On February 3, 2010, pursuant to our Order of December 11, 2009 granting Appellant's
"Petition to Open," Appellant filed an Amended PCRA Petition (which was dated January 29,
2010). This Amended Petition consisted of thirteen (13) separate pages and alleged that
Appellant's conviction was the result of the following defects pursuant to 42 Pa.C.S. §
9543(a)(2)(i), (ii), (iii), (iv), (viii): an unlawfully induced plea of guilty where "the circumstances
12
713 A.2d 81 (Pa. 1998).
Page 9 of 112
make it likely that the inducement caused the petitioner to plead guilty and the petitioner is
innocent;" a violation of the United States or Pennsylvania Constitution or laws which "so
undermined the truth-determining process that no reliable adjudication of guilt or innocence could
have taken place;" ineffective assistance of plea counsel which "so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could have taken place;"
the improper obstruction by government officials of Appellant's right to appeal where meritorious
appealable issues existed and were properly preserved; and finally a "proceeding in a tribunal
without jurisdiction."
More specifically, the following claims were raised in his pro se Amended Petition,
including, but not limited to: his guilty plea was unlawfully induced as he was incompetent "due
to the sudden cessation of all psychotropic medication for several days prior to the plea;" there
was no factual basis to his nolo contendere plea and, therefore, it was unlawfully induced; the
Commonwealth violated the Constitutions of the United States and the Commonwealth,
respectively, by violating the Wiretapping and Electronic Surveillance Act (''the Wiretap Act"),
13
18 Pa.C.S. 5701 et seq.; plea counsel was ineffective based on his lack of awareness of the
allegedly constitutionally infirm wiretap evidence; plea counsel "mislead and misinformed"
Appellant as to the "authorship and contents of the 'Habeas Corpus' documents;" appellate counsel
did not withdraw Appellant's plea upon request; there was "improper obstruction" of Appellant's
13
Appellant claims in further detail that Judge Biehn's authorization of the wiretap by Order dated February 23, 2004
was a "legal nullity," as Appellant alleges that Judge Biehn was not the President Judge of Bucks County nor was he
a designated signee by writing, order or statute. See "Amended PCRA to Supplement PCRA Petition Pursuant to
Order Dated 12/10/2009," 2/03/10,, 5(A)(a)(i). Appellant further contends that the Wiretap Act was violated by the
Commonwealth's failure to comply with record keeping and custody requirements, failure to obtain consent from
"informants Fryling or Samios," and failure to seal the recordings to prevent tampering, intercepting oral
communications outside the geographical limits of Bucks County. Id. at ,r 5(A)(b)-(f). Appellant asserts that "Expert
Audio Forensic analysis of the original audio evidence has scientifically proven that there is objective forensic
evidence of intercept tampering in the original recordings." Id. at ,r 5(A)(h).
Page 10 of 112
PCRA collateral appeal by "Bucks County Governmental Officials;"!" and this Court proceeded
without proper venue. See "Amended PCRA to Supplement PCRA Petition Pursuant to Order
Dated 12/10/2009," 2/03/10, pp. 3-10.
On May 6, 20 I 0, the Commonwealth filed a response to the Amended Petition and Request
to Reopen the Record.
Following the Court's grant of prose and in forma pauperis (IFP) status, and throughout
the litigation of his claimed amended issues during the preceding thirteen (13) evidentiary
hearings, Appellant filed numerous motions. These motions included the following15:
1. A "Fifth Motion for Return of Property" filed on February 16, 2010;
2. A "Motion for Judicial Notice that in 20 IO Detective Fabricated Wiretap
Documents" filed on March 29, 2010. (The Court declined to act on this
Motion and it was therefore denied by operation of law);
3. A "Motion to Receive Audio-Visual Expert" filed on the same date. (The
Court also declined to act on this Motion and it was therefore denied by
operation of law);
4. A "Motion for Hearing" and a "Motion for Judicial Notice" filed on April
28, 2010;
5. A "Motion for Rule Absolute" filed on May 12, 2010;
6. A "Motion for Judicial Notice of 201 PA Code 706(e) Requiring the Filing
of an Executed Form" filed on May 13, 2010;
7. A "Motion to Hold the Commonwealth in contempt of Orders dated
12/10/09 and 2/5/10" filed on May 13, 2010;
8. A "Motion to Order Commonwealth to Answer Amended PCRA As
Ordered"!" filed on May 24, 2010;
14
Appellant later elaborated that this was based on either the Bucks County District Attorney's Office or the Bucks
County Detectives tampering with the evidence, presenting false evidence and/or failing to follow the Wiretap Act "in
many different ways." N.T. 8/26/10, p. 15.
15
All of the "Motions" are in Appellant's own words.
16
This Motion was denied on June 2, 2010, as the Commonwealth had previously filed a response to Appellant's
Amended pro se PCRA Petition.
Page 11 of 112
9. A "Memorandum in Support of Amended PCRA" filed on May 28, 2010;
10. A "Motion to Reconsider 'Declining to Act' on Open Motions as it
Prejudices Petitioner" filed on June 16, 2010;
1 I. A "Motion for Handwriting Exemplars of Former Judge Biehn" and a
"Motion for Judicial Notice" filed on June 16, 201 O;
12. A "Motion to Compel Service of Commonwealth's Responses" filed on
June 21, 2010;
13. A "Motion for Standby Counsel" filed on July 8, 2010;
14. A "Motion for Audio-Forensic Expert to Testify by Video at Video-
Teleconference on 8/12/1 O" filed on July 12, 201 O; and
15. A "Motion for the State to Bear Expert Costs" filed on July 28, 2010.
The last three motions filed in July of 2010 were denied or stayed until disposition at trial,
and the PCRA hearing was continued until August 26, 2010.
On August 16, 2010, the Commonwealth filed a "Motion for Mental Health Records." We
issued an Order scheduling a hearing on this Motion for August 26, 2010, to be heard in
17
conjunction with the previously-scheduled evidentiary hearing.
On August 26, 2010, at the first PCRA evidentiary hearing following the foregoing
amendments, Appellant added that in terms of his ineffective assistance of counsel claims he was
raising all of the following:
"[fjailing to litigate a suppression motion, failing to object to a defective guilty plea
colloquy, promising a certain sentence that was not given, failure to investigate the
case and giving incompetent advise based on lack of knowledge of the case;
stipulating to false information and ... not communicating honestly with me, not
offering any defense documents but allowing defense documents to be offered by
the Commonwealth" and "[w]aiving a preliminary hearing without (Appellant's]
presence."
17
At the August 26, 2010 hearing, this Court ordered that the Mental Health Services Unit at the Bucks County
Correctional Facility provide the District Attorney's Office with certified copies of Appellant's records. A written
Order followed.
Page 12 of 112
-- ..
See N.T. 8/26/10, pp. 14-15.
In terms of his claim that this Court did not have subject matter jurisdiction over his crimes,
Appellant confirmed that he based this claim on the fact that the interceptions occurred in
Montgomery County and Maryland and Judge Biehn was not designated by the President Judge to
sign the authorization order. N.T. 8/26/10, pp. 16-17.
At the August 26, 2010 hearing, Appellant submitted an offer of proof as to each of his
claims raised in the Amended Petition in addition to the evidence and testimony previously
submitted to this court during the June 26, 2008, November 24, 2008, and December 19, 2008
evidentiary hearings when Appellant had been represented by Attorney Cooper. See N.T. 8/26/10,
pp. 21-36. Appellant explained that he wished to call Attorneys Fink and Tauber as witnesses in
order to introduce certain documentation into evidence to support his defective plea colloquy claim
and prove his claim regarding the voluntariness of his guilty plea. He testified that he sent out
subpoenas to the psychologists involved in his mental health care and to the medical record
custodians at the prison that went unanswered. N.T. 8/26/10, pp. 22-26.
Appellant stated that he intended to call Attorneys Fink and Tauber, in addition to experts
that were unable to attend this hearing, including Herbert Joe, in an effort to prove his claim of
ineffective assistance of counsel. N.T. 8/26/10, pp. 28-30. Appellant also indicated that he intended
to call Detective Carroll and Detective McAteer as witnesses. N. T. 8/26/10, p. 31. For the
prosecutorial misconduct claim, Appellant testified that he intended to call [Deputy District
Attorney and now Magisterial District Judge] Gary Gambardella, Judge Diane E. Gibbons, 18 and
18
Judge Gibbons previously held the position of Bucks County District Attorney during the relevant period of
Appellant's investigation, arrest, charging and criminal conviction, and will be referred to hereinafter as District
Attorney Gibbons.
Page 13 of 112
former President Judge David Heckler.19 N.T. 8/26/10, pp. 32-33. Finally, concerning the legality
of the wiretap interception involved in this case, Appellant intended to call Herbert Joe and
Detective Mosiniak. N.T. 8/26/10, p. 35. Appellant would rely on his own testimony from previous
hearings and stated that he would not be testifying further. N.T. 8/26/10, p. 36.
On September 10, 2010, Additional Discovery was filed by the District Attorney's Office.
At the end of the evidentiary hearing on August 26, 2010, we ordered the parties to file
briefs on the issue of the admissibility of the expert testimony of Mr. Herbert Joe regarding audio
forensics. On September 10, 2010, Appellant filed a "Memorandum Regarding the Audio Forensic
Expert [Mr. Joe]". On September 27, 2010, the Commonwealth filed a "Memorandum of Law in
Opposition to Admissibility of PCRA Petitioner's Proposed Expert Testimony," to which the
Appellant filed a "Reply to ADA's Memorandum" on October 6, 2010.
On September 30, 2010, Appellant filed a "Praecipe to Attach to Amended PCRA
Memorandum as Exhibit 24."
On October 25, 2010, the District Attorney forwarded the requisite mental health/medical
records to Appellant. On this same date, Appellant filed Supplemental Exhibits for PCRA Hearing.
On October 27, 2010, Appellant filed a [16] "Motion to Compel Attendance of Hostile and
Commonwealth Witnesses" and a [17] "Motion for Petitioner to Maintain Physical Possession of
Legal Work." On November 3, 2010, Appellant filed a "Notice for Commonwealth to Produce
Originals." On November 10, 2010, Appellant filed a "Praecipe to Attach as Page 13 to Amended
PCRA," and he filed "Petitioner's Supplemental Exhibits for PCRA Hearing" on November 15,
2010.
19
Judge Heckler currently holds the position of Bucks County District Attorney.
Page 14 of 112
On December 15, 20 I 0, Appellant filed a [ 18] Motion for PCRA Discovery which was
denied on December 28, 2010.
On January 31, 2011, Appellant filed a "Supplemental PCRA Hearing Exhibits Set 3."
On May 2, 2011, Appellant filed a "Notice for Commonwealth to Produce Original Record
and Docket Entry Sheets pursuant to Pa.R.E. 1004(3)."
On JtU1e 10, 2011, Appellant filed "Supplemental PCRA Hearing Exhibits J 14 and J 26."
Significantly, on August 5, 2011, the Commonwealth filed a "Motion to Deny and Dismiss
PCRA Action Based on Substantial Prejudice to the Commonwealth," claiming substantial
prejudice due to the death of an essential witness, Michael Samios. On August 18, 2011, Appellant
filed a response to this Motion, and on September 14, 2011, this Court entered an Order denying
the Commonwealth's Motion.
In the interim, Appellant filed a [19] "Motion for Judicial Notice" on September 1, 201120
and "Supplemental PCRA Hearing Exhibits - W Set" on September 8, 2011.
On November 7, 2011, Appellant filed a [20] "Motion for Notice that Detective Carroll did
not take Oath and Termination Date from Bensalem Twp PD."
On January 9, 2012, Appellant filed a "Praecipe to File Petitioner's Subpoenaed
Witnesses." On January 19, 2012, Karen Ann Ulmer filed Certificates of Service of Subpoena
upon the District Attorney's Office, Clerk of Courts, Custodian of Records of Bensalem Township,
and Chief Detective McAteer.21 On this same date, Appellant filed "Supplemental PCRA Hearing
Exhibits Set Y."
20
This Motion was returned to the file without action by this Court.
21
Motions to Quash Subpoena were filed on September 16, 2011, January 19, 2012, and June 17, 2014. On June 26,
2014, this Court granted the Motion to Quash Subpoena and for Protective Order filed by the Honorable Diane
Gibbons, shielding Judge Gibbons from further subpoenas in this PCRA matter.
Page 15 of 112
On February 21, 2012, Appellant filed "Supplemental PCRA Hearing Exhibits Set B."
On February 24, 2012, Appellant filed a [21] "Motion to Order Compliance with Order of
1/20/2012."
On March 27, 2012, the Commonwealth filed a "Memorandum of Law in Opposition to
Request for Introduction of Various Evidence and Testimony," as directed by this Court during
the January 20, 2012 hearing, and a "Motion in Limine to Preclude Introduction of Evidence and
Testimony" on April 25, 2012.22 Appellant filed responses on April 27, 2012 and May 9, 2012.
On June 1, 2012, Appellant filed a (22] "Motion to Compel Commonwealth Production of
Original Intercept Tapes and Recorders Utilized" and a [23] "Petition to Declare Commonwealth's
PCRA Delays Violate Petitioner's Due Process and Equal Protection."
On June 27, 2012, Appellant filed a [24] "Motion for Audio-Forensic Expert," which was
denied on June 28, 2012.
On July 18, 2012, Appellant filed a [25] "Motion for Judicial Notice [that] ADA Diaz Did
Not File 16 P.S. 3403 Oath of Office for her Current Position." On July 30, 2012, Appellant filed
a "Stipulation Pursuant to Order 1120/12," and on August 15, 2012, he filed "Supplemental
Exhibits Set A."
On September 12, 2012, Appellant filed a (26] "Motion for Judicial Notice that
Commonwealth's Exhibits 2A, 2B, 2C Do Not Contain any 16 P.S. 3403 Oaths of Offices for
ADA Gambardella, Nor Detectives Carroll, Mosiniak or Chief'McAteer." On September 27, 2012,
Appellant filed a [27] "Motion in Limine to Order Sprint to Produce Informant Cell Phone Records
from l/15/04-3/15/04," a [28] "Motion to Order Commonwealth PCRA Production of All Parts of
Multiform Property Receipts 4666 & 4667" and a [29] "Motion in Limine to Permit Examination
22The Commonwealth's Motion in Limine was returned for consideration at the time of the next PCRA evidentiary
hearing.
Page 16 of 112
of Corroboration Witness Mosiniak and Affiant Carroll." On October 19, 2012, Appellant filed a
[30] ''Motion to Transcribe Commonwealth's Compilation Tape Admitted as C-PCRA-1." On
October 31, 2012, we issued an Order denying Appellant's Motions in Limine and Motion to Order
Production of Property Receipts.
On November 2, 2012, Appellant filed a [31) "Motion to Order Commonwealth's PCRA
Testimony Warrants Limited to PCRA Discovery." On November 28, 2012, Appellant filed a [32)
"Motion to Permit PCRA Witnesses Confirming CI Samios Provided Drugs to Targets during
Intercepts," a [33] "Motion to Compel PCRA Production of Seized Meth Baggie with CI Samios
Fingerprints" and a "Praceipe to Attach Witness Affidavit Confirming CI Samios Provided Drugs
to Target as Exh. Dl."
On December 5, 2012, Appellant filed a [34] "Motion to Permit Audio Evidence and
Transcript of C-1 Confirming CI Samios Provided Drugs to Target," as well as a "Praecipe to file
Transcript oflntercept Compilation Tape PCRA Admitted as CW Exhibit C-1."
On December 14, 2012, Appellant filed a "Praecipe to Attach to Amended PCRA as
Exhibit Dl, Transcript of20 Min. Compilation Tape."
On December 28, 2012, a [35] Motion for Rule to Show Cause Bill of Sale for Truck
Confirming $2000 Paid to Samios for Truck Title" was filed.
On February 1, 2013, Appellant filed a "Praecipe to file PCRA Hearing Exhibits Set D."
On February 11, 2013, Appellant filed an "Application for Bail Pending Disposition of
PCRA Petition," as well as a Brief in Support thereof. We denied this motion on August 9, 2013.
On February 22, 2013, Appellant filed a [36J "Motion for Judicial Notice of Maryland
Wiretapping and Electronic Surveillance," a [37] "Motion for DAO Sanctions," and a
Page 17 of 112
.··-.
"Memorandum of Law." On February 28, 2013, Appellant also filed a [38] "Motion for Sanctions
Per Pa.R.C.P. 1023.2." This was returned to the file without action.
On March 26, 2013, Appellant filed a "Praecipe to Attach Exhibits G" and a "Praecipe to
Attach Exhibits T," and he filed another "Praecipe to Attach Exhibit S" on April 19, 2013.
On March 27, 2013, Appellant filed a [39] "Motion to Compel Production of Seized Office
Billing Records."
On April 19, 2013, Appellant filed a "Praecipe to Move Open Motions as BCLRCP
208.3(a) Uncontested." Despite the fact that Rule 208.3(a) constitutes a local rule of civil
procedure, Appellant invoked this rule in an attempt to "move open motions" that were
"uncontested."
On July 15, 2013, Appellant filed a "Praecipe to Attach as Exhibit T-Tto Amended PCRA
Petition."
On August 26, 2013, Appellant filed a [40] "Motion to Transcribe PCRA Hearings dated
5/3/13, 8/12 & 8/13/13," and on September 3, 2013, he filed a [41] "Motion to Order PennDOT to
Provide Certified Vehicle Title and Lien Histories."
On November 6, 2013, Appellant filed a "Praecipe Notice PCRA Transcripts Not Received
by Appellant for PCRA Hearing of 5/3, 8/12, 8/13, 10/10 Nor 10/11/2013 Pursuant to Pa.R.Crim.P.
No.'s 113, 114 & 115."
On December 6, 2013, Appellant filed a [42] "Motion for Transcripts," which was denied
by this Court on December 11, 2013.
On December 18, 2013, Appellant filed a "Stipulation."
On December 30, 2013, Appellant filed a [43] "Motion Re: DAO Intercept Media
Disclosures of 3/3/2004 for Notice of Testimony" as well as a Brief in support thereof.
Page 18 of 112
On January 29, 2014, Appellant filed another "Praecipe to Attach Exhibit to Amended
PCRA."
On April 25, 2014, Appellant filed a [44] "Motion for Sanctions Against DAO
Continuances and Delays." This Motion was denied at the hearing held on June 30, 2014, since it
was Appellant's request that the hearing scheduled for April 22, 2014 be continued because he
was unprepared for the hearing and his slanderous claim that the District Attorney's Office had ex
parte communications with this Court to get the hearing continued was patently false. See N.T.
6/30/14, pp. 17-26.
Appellant filed additional "Praecipes" to attach exhibits to his Amended PCRA Petition on
May 22 and June 20, 2014.
In summary, this Court carefully reviewed each and every motion filed by both Appellant
and the Commonwealth. Many of Appellant's Motions that were not directly disposed of by
written Order or not immediately acted upon were either inappropriately filed pursuant to civil
procedure rules (as opposed to following proper criminal procedure channels) or placed in the file
for disposition at the time of the relevant evidentiary hearings, and/or, in the case of the Exhibits
and Exhibit Sets filed, should have been presented in court subject to cross-examination in order
to determine the exhibits' relevance and admissibility.23
PCRA evidentiary hearings took place on August 26 and November 19, 2010; February 7,
June 13 and September 19, 2011; January 30 and August 17, 2012; May 3, August 12, August 13,
23
As we will set forth in detail below, some of these exhibits were in fact authenticated and later admitted into
evidence, and some were not.
Page 19 of 112
October IO, and October 11, 2013; and finally June 30, 2014.24 These hearings consisted solely
of Appellant's case-in-chief.
Following the last evidentiary hearing, this Court directed the parties to submit briefs.
Appellant and the Commonwealth submitted briefs on September 4, 2014 and October 6, 2014,
respectively.
A complete set of the sixteen (16) analog cassette tapes which are referred to by all
witnesses during the course of the PCRA evidentiary hearings was entered into evidence as C-
PCRA-7.
a. Appellant's PCRA Testimony
Preliminarily, we noted that upon consideration of Appellant's contention that he was
unable to make a knowing and intelligent decision to enter a guilty plea as a result of being off his
medications, Dr. Strochak, who testified at Appellant's Guilty but Mentally Ill/Sentencing
Hearing, "did not wish to give a full opinion with regard to the coming off of medications because
he does not dispense medications." Dr. Strochak did, however, recommend Dr. David Nover, who
later indicated that it was necessary to review a list of medications that Appellant was off of and
his guilty plea colloquy transcript before giving his professional opinion. N.T. 6/26/08, pp. 13-15.
On December 15, 2008, Dr. Nover submitted a report to Appellant and his attorney. At the hearing
on December 19, 2008, defense counsel indicated that he would not be offering the report into
evidence, as it was his opinion that "it doesn't help this petition and this relief that is requested."
Defense counsel also indicated that he reviewed and explained this to Appellant. N.T. 12/19/08,
p. 6.
24
Some additional evidentiary hearings were originally scheduled but had to be continued due to unavailability of
Appellant, the District Attorney or other witnesses.
Page 20 of 112
Appellant testified to the facts he believed to be in existence supporting the allegations
made in his February 8, 2008 "Concise Statement" as set forth above.
Appellant first addressed his contention that this Court (the Bucks County Court of
Common Pleas] lacked subject matter jurisdiction in accepting Appellant's guilty plea and
sentencing him thereafter. Appellant averred that "[d]uring periods of time that these alleged
offending conversations were allegedly made, I, myself, was in Maryland, and some of the time I
was in Montgomeryville ... " He testified that he did not know where the individual who placed the
telephone calls which led to the recordings was geographically at the time they were made and
simultaneously recorded. He claimed that the Commonwealth did not offer any logs to indicate
where the confidential informant (C.I.) who placed the calls was at the relevant time the calls were
placed and the incriminating statements were made. Furthermore, Appellant testified that it was
his belief and opinion that if the incriminating conversations did not happen in Bucks County, this
Court did not have jurisdiction to authorize the wiretaps underlying the recorded telephone calls,
and this jurisdiction did not "follow them to other states and to other countries." N.T. 6/26/08, pp.
19-28.
During the relevant period of February and March, 2004, when the crimes underlying
Appellant's conviction occurred, Appellant's parents lived in Plumstead Township, Bucks County,
and Appellant's office and residence were located in Furlong, Bucks County. Appellant also
agreed that, pursuant to the Notes of Testimony from Appellant's Sentencing Hearings, a recitation
of the facts indicated as follows:
... on February 27 the detectives conducted a taped conversation at Guarrasi's
parents' house, Guarrasi tells Samios that he cannot write out a sketch for him
because it would have his handwriting on it, but he would have a schematic back at
the office that he can provide him with. He then pays Samios two thousand dollars
as a downpayment and he even counts out the money on tape.
Page 21 of 112
-.
Appellant admitted that if this were a "true statement," the Court would have had jurisdiction. He
also admitted that during the relevant time period, he gave Mr. Samios (Samios)25 money and
blueprints of the Lower State Road residence and had conversations with him. N.T. N.T. 6/26/08,
pp. 39-46, 63-64; N.T. 11/25/08, pp. 53-54.
Nevertheless, Appellant now claims these facts are completely erroneous and that he never
solicited Samios to kill Thomas Witthauer or his family.26 N.T. 6/26/08, pp. 41, 64-65; N.T.
11/25/08, pp. 56-61. Instead, Appellant claimed that despite Mr. Witthauer's continued residence,
he had hired Samios to perform landscaping/construction work on the Lower State Road property
because the corporation of which he was an owner had purchased this property.27 N.T. 11/25/08,
pp. 49-51. Appellant also indicated that he wanted to review his personal telephone bill or the
telephone records of Detective Carroll and Samios. On cross-examination, Appellant explained
that, in his opinion, the locus of the crime was located in Montgomery County. N.T. 6/26/08, pp.
27, 35-36.
In terms of his mental state at the time of Appellant's Guilty Plea hearing on March 28,
2005, Appellant claims he was off medication and was "out of [his] mind." N.T. 6/26/08; p. 70.
In response to the District Attorney's question as to what he did not understand in relation to the
guilty plea, Appellant claimed that he was not paying attention to the proceeding and he was ''just
there to agree" and agreed to "whatever was going to be said." N.T. 11/25/08, p. 65. However,
although Appellant had claimed he was on medication at his Guilty but Mentally Ill/Sentencing
25
Throughout his testimony, Appellant referred to Mr. Samios as the "C.I." We do not agree with his designation of
Samios, as Samios was a named informant.
26
The Notes of Testimony from Appellant's Guilty Plea hearing indicate that Appellant informed the trial court that
he understood the charges against him and that there were numerous victims with regard to his attempted crimes. See
N.T. 3/28/05, pp. 7-14, 16·17.
27
Appellant later testified that Sarnios conducted construction work on numerous properties Appellant owned in
Pennsylvania and Baltimore, Maryland. N.T. 11/25/08, pp. 95-97.
Page 22 of 112
Hearing on May 25, 2005, and was therefore "more in [his] right mind then," he claimed he still
"wasn't as clear" as he was on the date of the June 26, 2008 hearing. N.T. 6/26/08, pp. 70, 75.
Appellant also claimed he was not as clear mentally when Attorney Tauber represented Appellant
on his direct appeal, and he claimed that Attorney Tauber refused to attempt to withdraw
Appellant's guilty plea upon request. N.T. 6/26/08, p. 71.
Appellant admitted, however, that as a former attorney representing a number of criminal
Appellants, he understood how guilty pleas are performed, was familiar with the elements of
colloquies and the constitutional rights a Appellant gives up following entrance of a guilty plea,
as well as the limited right to appeal and the dictates of the Wiretap Act. Appellant indicated that
he understood the rights that an individual possesses that are waived in order to enter a guilty plea.
Furthermore, he indicated that at the time he entered the guilty plea, he understood that he entered
a nolo contendere or guilty but mentally ill plea to crimes that occurred in Bucks County. N.T.
6/26/08, pp. 30-31, 69, 97; N.T. 11/25/08, pp. 46-48.
Appellant additionally indicated that he understood that by entering an open guilty plea,
his sentence was dependent upon the trial judge, and he understood that no recommendation was
made as to sentence. Finally, he recalled that Judge Biehn instructed him regarding the Sentencing
Guidelines and that his sentence was in fact within the standard range of the Guidelines. N.T.
11/25/08, pp. 67-68, 70, 89-90. Appellant did not raise a claim that he was wrongfully induced to
enter into a guilty plea until the filing of the instant PCRA Petition. N.T. 6/26/08, p. 78.
Appellant claimed he entered into a nolo contendere plea because Attorney Fink informed
him he would never go to jail and would be housed in a mental hospital, and had assured him that
"he got this all worked out." N. T. 6/26/08, p. 80-81. Appellant testified that he remained steadfast
in the proposition that he wanted to go to trial and that Fink never explained to him the reasoning
Page 23 of 112
. ...-...
behind his recommendation to enter into a guilty plea besides that it was in his best interest. N.T.
11/24/08, 36, 39. Appellant testified that according to Fink, "he was supposed to spend one year
[at a mental health hospital] and go home" following his sentencing. N.T. 6/26/08, 84-86.
Appellant later testified at the November 24, 2008 hearing that Fink suggested he enter a
guilty plea to solicitation to commit aggravated assault and that he would be looking at "two to
four [years] maybe spent in a mental hospital."28 N.T. 11124/08, pp. 36, 73. Appellant testified
that ifhe would have received a two (2) to four (4) year sentence in the Bucks County Correctional
Facility he "probably" would not have filed an appeal to the Superior Court. N.T. 11125/08, p. 87.
Appellant also indicated that Fink said that by pleading guilty he could "keep [his] stuff," meaning
his law license, properties and contact with his family. N.T. 11/24/08, pp. 73-74. Receiving a
sentence of time served in a mental health institution as opposed to incarceration in a correctional
facility was an important consideration when Appellant entered his plea. N. T. 6/26/08, pp. 81-82.
However, following his sentencing Appellant was "unexpectedly" transported to SCI Graterford
for classification purposes, then he went to SCI Camp Hill for a "couple months," followed by SCI
Cresson, where he continues to serve his sentence. N.T. 6/26/08, p. 83.
Thereafter, Appellant referred to the Notes of Testimony from his Guilty Plea, during
which Judge Biehn informed Appellant that if, at the time of sentencing, he is still in need [ of
treatment] or severely mentally disabled, he may serve part of his sentence in a mental institution.
N.T. 6/26/08, pp. 88-89; N.T. 11/25/08, pp. 77-79; see N.T. 3/28/05, pp. 15-16.29 Furthermore, at
the Guilty but Mentally Ill/Sentencing Hearing, Judge Biehn indicated that Appellant would be
28 Appellant testified that he would have done whatever Fink suggested, as he was his "expert" and he trusted him.
N.T. 11/25/08, pp. 71-72.
29The Court explained further that Appellant would serve some or all of his sentence in a mental health institution
until Appellant is found "to be no longer severely mentally disabled and in need of that kind of treatment under the
Mental Health and Procedures Act." Appellant indicated that he understood. N.T. 3/28/05, pp. 15-16.
Page 24 of 112
evaluated and serve the initial part of his sentence in a mental health and psychological facility
and/or a drug and alcohol facility. N.T. 6/26/08, pp. 89-90; N.T. 11/25/08, pp. 92-93; see N.T.
5/25/05, 99-100.
Prior to the entry of his Guilty Plea, Appellant admitted that he reviewed the Affidavit of
Probable Cause attached to the criminal complaint. N.T. 11/25/08, p. 64. In addition, Appellant
listened to relevant portions of the tapes at the District Attorney's Office prior to the plea, Fink
provided him with copies of the tapes prior to the plea as well, and he advised Judge Biehn at his
sentencing hearing that he listened to the tapes. N.T. l I/24/08, p. 19; N.T. I 1/25/08, p. 64; N.T.
5/25/05, pp. 90-91.
Judge Biehn informed Appellant of his right to file a motion to withdraw his guilty plea
within ten (10) days, indicated that Appellant appeared to understand the proceeding, and ensured
that Appellant did not have any questions of the Court. N.T. 11/25/08, pp. 79-80. See N.T. 3/28/05,
p. 20. Appellant also testified at his guilty plea that he was satisfied with Fink's representation and
did not have any questions of the court. N.T. 11/25/08, pp. 79-80.
It was uncontradicted that Appellant did not possess written proof that he would receive a
two (2) to four (4) year sentence or that he would serve his sentence in a mental hospital. N.T.
11/25/08, pp. 70- 71, 91.
Appellant claims that there existed no factual basis for his plea contained on the record
because the District Attorney did not read the affidavit of probable cause or other documents into
Page 25 of 112
.-.......
the record.3 ° Furthermore, the tapes/interceptions31 of Appellant's recorded conversations were
not played for the Court. N.T. 6/26/08, p. 100. However, the Notes of Testimony indicate that both
the District Attorney and defense counsel agreed that the notes presented to the court from the
litigation concerning Appellant'sMotion for Habeas Corpus were sufficient to establish the factual
basis for the plea. See N.T. 3/28/05, pp. 17-18.
Appellant testified at the Guilty Plea hearing that he reviewed the stipulation and
acknowledged that the facts set forth therein formed the basis for his conduct underlying the instant
charges. See N.T. 3/28/05, pp. 18-19. However, this stipulation was not located within the
transcript from Appellant's guilty plea hearing. Appellant claimed that there were different
versions of the habeas corpus petition and supporting documents and he had not reviewed some of
these documents, including the factual stipulation. As such, Appellant claimed he did not read this
document prior to his Guilty Plea or Guilty but Mentally Ill/Sentencing Hearings. N.T. 6/26/08,
pp. 103-105.32 Appellant was later referred to Page 10 of the Guilty Plea hearing transcript. At this
point in the hearing, Judge Biehn explained that the nolo contendere plea followed disposition of
Appellant's Petition for Habeas Corpus and that Appellant was acknowledging that there was
30 The defective plea colloquy claim also encompasses an ineffective assistance of counsel claim, as Appellant alleges
that Fink failed to adequately go over the stipulated document that was later read into evidence; said document was
not signed by Fink or dated, and there were lines drawn through it. N.T. I l/24/08, pp. 39-40. He also claims that some
of the factual averments contained therein were false and "not supported by anything [the Commonwealth has] in
evidence." N.T. 11121/08, p. 40. The District Attorney explained that following the Sentencing hearing, the Court
Reporter requested a copy of the Habeas Corpus document and the District Attorney accordingly provided it. N.T.
11/24/08, p. 44. He indicated that the paragraphs which were crossed out were not recited for the Court or, in the
alternative, were summarized for the Court in the District Attorney's own words. N.T. 11124/08, pp. 44-45.
31 Because both Appellant and the Commonwealth characterize the recorded conversations relevant to the instant case
that were later memorialized on cassette tapes as either tapes or interceptions, we use these terms interchangeably
throughout the remainder of our Memorandum Opinion.
32 Inlater testimony, Appellant claimed that trial counsel was ineffective for failing to inform Appellant of the contents
of said document prior to his Guilty Plea and Guilty but Mentally Ill/Sentencing Hearings. N.T. 11/24/08, pp. 28-30,
31.
Page 26 of 112
r..........
sufficient evidence to establish the relevant charge despite Appellant's lack of admission thereto.
N.T. 11125/08, pp. 94-95. See N.T. 3/28/05, pp. 9-10.
At Appellant's Guilty but Mentally Ill/Sentencing Hearing, the Habeas Corpus document
was read into the record and entered into evidence as the Court's Exhibit 1 (Exh. CE-1). See N.T.
5/25/05, pp. 6-30, Exh. CE-1. Appellant claimed he brought his disagreement with some of the
facts to Fink's attention but to no avail. N.T. 6/26/08, pp. 135-37.
Specifically, Appellant underwent an analysis of each and every page of the recitation of
Exhibit CE-I at the November 24, 2008 hearing. He claimed that the vehicles that he used to
further his insurance fraud scheme were "on blocks" and therefore not in working order to facilitate
a car crash. He also claimed that Samios and Ms. Fryling (Fryling) had no automobile insurance
at this time, intimating that the statements and proposed testimony of these witnesses were false.
Additionally, he claimed he only had one (1) single limousine whereas the District Attorney
claimed he had several. N.T. 11124/08, pp. 50-51, 55. Furthermore, he claimed that (I) there was
no intended victim in the instant case and (2) he owned the Lower State Road property and Mr.
Witthauer "was a crack addict that broke into one of my houses, barricaded himself, and had crack
parties." N.T. 11/24/08, pp. 53, 54; N.T. 11/25/08, p. 110. Appellant called the police numerous
times in an attempt to remove Mr. Witthauer from the property. N.T. 11125/08, pp. 110-11. He
also denied that he planned to purchase the Lower State Road property to renovate it into a "kama
sutra" club, and in fact blamed Mr. Witthauer for the sex club scheme.33 N.T. 11/24/08, p. 53.
Ultimately, Appellant refused to take responsibility for the crimes to which he pied guilty,
as he claimed that no crimes were committed and ''there's no responsibility to take." N.T.
11/25/08, pp. 112-13.
33 While questioning Detective Carroll on direct-examination, Appellant again attempted to inculpate Mr. Witthauer
in the scheme. N.T. 8/13/13, pp. 24-26.
Page 27 of 112
Moreover, Appellant claimed that any incriminating statements made were not "insidious
commands" but, based on the fact that "laughter" and "words of comedy" were cut out of the
transcriptions, in reality these statements were the result of "people that are drinking, doing meth
and in a different frivolity." He contends that many of the statements that either he or Samios made
regarding the solicitation scheme were mischaracterized and presented to the Court in a "false
light" and that they were "represented improperly." N.T. 11/24/08, pp. 60, 65; N.T. 11125/08, p.
I 03. Appellant complained that certain dates of the transcriptions were wrong. Finally, Appellant
claimed that any "ruses" to get Samios into the property were based on legitimate legal
documentation demonstrating that Appellant was the actual owner of the property. N.T. 11/24/08,
pp. 61, 63.
Later, Appellant testified that he purchased the Lower State Road residence from Ms.
Fryling, and, thereafter, there was a dispute about Fryling and Samios moving back into the
residence. Appellant agreed to "take over" that property and give Fryling and Samios a trailer in
Valley View Trailer Park. Appellant testified that a lot of work had to be done to this particular
property as a result of "deferred maintenance." He claimed Samios had a crew of approximately
six (6) to twelve (12) construction workers and that this was his purpose for him being at the Lower
State Road property. He admitted on cross-examination that he had purchased the property from
the Witthauers and that Patricia Witthauer's name was still on the deed to the property prior to
Lower State Road Associates purchase thereof N.T. 11/25/08, pp. 98-106; see N.T. 2/07/11, pp.
191-93; Exh. P-104, P-105, P-106.
On November 24-25, 2008, Appellant testified regarding his ineffective assistance of
counsel claim against Fink. Appellant testified that Fink met with him only a "few" times regarding
this case. He claimed that following his preliminary hearing, his bail was increased and he was
Page 28 of 112
subsequently sent to the Bucks County Correctional Facility (BCCF) and then a mental hospital
for approximately one (1) month. During his time at the mental hospital, Appellant averred that
Fink did not meet with him. Following his stay at the mental hospital, Appellant was returned to
BCCF, and was thereafter released on house arrest in January of 2005 until March of 2005. He
was later re-committed back to BCCF as a result of cocaine use. Appellant testified that Fink did
not meet with him during either his time in BCCF or on house arrest at his residence in Furlong,
Bucks County. However, he did visit with Fink approximately three (3) times while on house arrest
to discuss the case. On one occasion, Marty Lyons (Lyons), the investigator Appellant had hired
through Fink, was present and allegedly indicated that there were problems with the interceptions.
N.T. 11/24/08, pp. 32-35.
More specifically, Appellant testified that his ineffective assistance of counsel claim
includes Fink's alleged failure to do the following: challenge the prosecution's case by waiving
the preliminary hearing in his absence; obtain discovery from the District Attorney's Office;
provide Appellant with a full copy of discovery; include a complete copy of the tapes of his
recorded conversations with Samios or a transcription of the tapes and the chain of custody of said
tapes; listen to the tapes/transcriptions;34 litigate a suppression motion and add allegations of a
constitutional violation of the Wiretapping Act to said motion as well as adding a notice of intent
to impeach both Samios and Fryling by evidence of past criminal convictions;35 challenge the
34
Significantly, Appellant later admitted that both he and Fink listened to a portion of the tapes in the District
Attorney's Office. N.T. I I/24/08, pp. 19-21.
35 Appellant further testified these violations were the result of conversations being recorded of him in his home
without a valid search warrant, as well as conversations being recorded that took place out of state or outside the
country. He also alleged that investigating officers utilized false statements and omissions to obtain the warrant to
conduct electronic surveillance. Furthermore, Appellant testified that although the prosecution claimed there were
between ten (10) to eighteen (18) hours of transcription, when he received copies there were only approximately six
(6) hours that contained "all kinds of edit marks and all kinds of breaks in the tapes ... and gaps." N.T. 11/24/08, pp.
16-18.
Page 29 of 112
chain of custody for the alleged $2,000.00 paid to Samios to order the hit of Mr. Witthauer; and
retrieve both Appellant and Detective Carroll's cell phone records36 and his "Palm Pilot" showing
his schedule. In terms of the habeas corpus document that provided the factual basis for Appellant's
nolo contendere and guilty but mentally ill plea, he testified that he was unsure as to who authored
the document and it was not dated or signed by either Fink or the District Attorney. N.T. 11/24/08,
pp. 13-28, 37, 69, 75.
Later, Appellant claimed that Fink informed him that the prosecution "had no case" and he
would have the case thrown out at the preliminary hearing. Specifically, Appellant testified that
Fink said the case will be "taken care of' or "gone" following the preliminary hearing. He also
stated that, prior to the preliminary hearing, Fink's office confirmed that Appellant should go to
the hospital and Appellant was under the impression that the hearing would be continued.37 N.T.
11/25/08, pp. 13-14, 104-05.
Later in his testimony, Appellant added a claim that Fink failed to file and litigate a Motion
to Withdraw Guilty Plea that he requested "soon after" he entered into the plea. However, despite
this, Appellant permitted Fink to continue his representation through the Guilty but Mentally
Ill/Sentencing Hearing. N.T. 11/25/08, pp. 24, 25.
Finally, Appellant made the blanket assertion that Fink was ineffective for failing to
communicate with him honestly, as Fink informed him that investigating officers did not violate
the Wiretapping Act and that he reviewed all the evidence against him very thoroughly. N.T.
11/24/08, pp. 71-72.
ss Appellant has since obtained his personal cell phone records, which were attached to his PCRA Petition as Exhibit
132. N.T. 11/24/08,pp. 76-77.
31 Fink later testified that he could not verify that his secretary at the time spoke to Appellant regarding his failure to
appear at the preliminary hearing. However, he indicated that he recalls speaking to Dr. Strochak afterward who said
that if Appellant was experiencing "such severe reactions that [he] should go to the hospital." N.T. 8/26/10, pp. 78-
79, See Exh. P-1 (e-mail from Dr. Strochak to Mr. Fink relating to Appellant's hospitalization).
Page 30 of 112
----·.
Appellant testified that Tauber was part of Appellant's counsel team prior to his guilty plea
in order to assist and consult with Fink. He also retained Tauber and his firm, Levant, Martin &
Tauber, to litigate his direct appeal. Appellant contracted with Tauber for $100,000. Appellant
claimed he is raising an ineffective assistance of counsel claim in relation to their representation.
Appellant filed a civil suit claiming breach of contract and legal malpractice against Tauber and
his firm, on the basis that Appellant asked them to withdraw his guilty plea,38 file motions, enter
their appearance, and raise certain issues on appeal and they failed to do so. Appellant enumerated
the issues on appeal he requested be raised, including the fact that he believe his sentence was too
long, the sentencing judge improperly used mental illness39 as an aggravating factor, as well as an
issue relating to the withdrawal of his guilty plea. Appellant also added that he wanted Tauber to
take over the case from Fink. N.T. 11/25/08, pp. 8-11, 17, 25-26, 34-35.
Appointed defense counsel, Harry Cooper, Esquire, explained that the basis for Appellant's
prosecutorial misconduct claim encompasses the District Attorney's failure to turn over
exculpatory evidence in discovery, the exaggerated language contained on the interceptions, as
well as the tampered, destroyed and fabricated physical evidence and violations of the
Pennsylvania Wiretapping Act. N.T. 11/24/08, pp. 79-80.
Appellant also raised an issue, presumably in the context of prosecutorial misconduct, that
Samios was permitted to provide Appellant drugs and alcohol at the time the conversations were
intercepted by law enforcement. Appellant testified that Samios admitted this to Lyons, the private
38 Appellant testified that he specifically requested Mr. Tauber or other members of his firm to withdraw his guilty
plea; however, they failed to do so either before or after sentencing. During this time, however, Fink was Appellant's
attorney of record. N.T. 11/25/15, pp. 22~23.
39
Following Fink's entry of appearance, Appellant was treated by Dr. Strochak and Dr. Cohen. Prior to this, he was
diagnosed at Friends Hospital with bipolar, mania, dissociative identity disorder and psychosis and was placed on
medication. He testified that he agreed with both doctor's reports as well as Dr. Strochak's testimony before Judge
Biehn. N.T. 11/25/08, pp. 36-39.
Page 31 of 112
investigator, and this admission was brought to Fink's attention via e-mail. Appellant also
indicated that it was his belief that Fink should have litigated this issue via a suppression motion.
N.T. 11/24/08, pp. 80-85.
b. Richard Fink's PCRA Testimony"
Fink indicated that he had been practicing law for about thirty (30) years, and his practice
is and has been primarily in criminal law. Appellant privately retained Fink to represent him in the
instant case. Fink went to the Lehigh County prison to meet with Appellant following an indication
from a Philadelphia defense attorney that Appellant was interested in meeting with him. Upon
consideration of the fact that Fink viewed this case as complex and the added notoriety based on
Appellant's position as an attorney, his fee was substantial. N.T. 11/24/08, 89-91, 145-46.
Fink met with Appellant prior to the preliminary hearing. Fink testified that "the potential
adverse consequences of having the preliminary hearing as opposed to obtaining all of the
discovery very early in the case" were discussed. It follows that the District Attorney agreed to
such an arrangement. Fink testified that the case itself was largely based on the recorded
interceptions of conversations between Appellant and Samios and, as a result, full discovery early
on in the case would enable him to start preparing the case for trial. He explained that the only
disadvantage to waiving the preliminary hearing would be foregoing the testimony of Samios, who
was the Commonwealth's main source of information in the case. Appellant's biggest contention
was that Samios had been supplying him with drugs at the time their conversations took place.
Fink determined that this could potentially constitute an entrapment defense in this case and,
40
Mr. Fink testified at Appellant's counseled hearing on November 24, 2008. Mr. Fink was recalled by Appellant
after he was permitted to represent himself at the August 26, 20 IO and November I 9, 201O hearings. In the interest
of judicial economy, we have summarized Mr. Fink's collective testimony and categorized it by relevant claim to
avoid duplication.
Page 32 of 112
--......
therefore, he wanted to look for confirmation of Appellant's contention. N.T. 11/24/08, pp. 91-
94, 155-56; N.T. 9/19/11, p. 60.
In his testimony, Fink identified the potential danger of having the preliminary hearing as
follows:
There had been some publicity in this case, some really bad adverse publicity. The
fact he was [a] lawyer, first of all, created a lot of publicity. The allegations of the
sexual operation created a lot of publicity. There was a lawyer who got involved
in the case and stated to the newspaper that Mr. Guarrasi was creating a sorority
house out of... this building and not a bordello. And then the publicity from the
newspaper writer that the college this lawyer alluded to had no sororities, so people
were starting... to prejudge the case. It would have been well attended by the
newspaper because of a lot of substantial interest.
N.T. 11/24/08, pp. 92-93; see N.T. 2/07/11, p. 8.
Fink recommended to Appellant that he waive the preliminary hearing in order to obtain
the benefit of early discovery and to avoid the publicity that he felt would have generated a "worse
sentence." N.T. 11/24/08, p. 97. Fink testified that he discussed this at length with Appellant well
before the date of the preliminary hearing and Appellant agreed to waive it. N.T. 2/07/11, pp. 5,
7-8. Fink testified that he never informed Appellant that the case would be dismissed prior to the
preliminary hearing. N.T. 9/19/11, p. 75.
On August 11, 2004, Fink sent a letter to the District Attorney advising him that he was
authorized by Appellant to waive the preliminary hearing on three (3) conditions, including
"[r]eceipt of all the documentation regarding the wiretaps, a copy of the tapes, together with... any
transcripts made, as well as any discovery which will be expedited."41 N.T. 11/19/10, p. 175;N.T.
41Fink later testified that the Commonwealth eventually complied with all conditions. In a letter dated November 2,
2004, Fink wrote to the District Attorney inquiring as to when the documents authorizing the wiretap would be
forwarded. Fink filed a Motion for Discovery thereafter. N.T. 11/19/IO,pp. 176-179; see Exh. P-38. A November 19,
2014 letter from the District Attorney to Fink contained the requisite wire documents, although these documents were
not filed with the Clerk of Courts as of this date because (I) they were provided in the form of informal discovery and
Page 33 of 112
-
2/07/11, pp. 5-8; see Exh. P-34. After the District Attorney permitted Fink to interview Samios
prior to the preliminary hearing on August 16, 2014, Fink again advised Appellant to waive the
preliminary hearing.42 N.T. 11/24/08, pp. 94-95, 150. Fink recalled that the District Attorney gave
him "free reign" to ask questions at this point, many of which would not have been admissible at
the preliminary hearing. N.T. 11/24/08, 150; N.T. 2/07/11, 209. Samios denied any drug usage
and anything that Fink determined "might have been helpful and [he] could have corroborated."
Fink also acquired Samios' background and did not recall any specific prior convictions but did
testify that his criminal background was "relatively insignificant." He found Samios to be credible
and felt he would be believed by a jury. N.T. 11/24/08, pp. 95-97, 156. Furthermore, he testified
that Samios was a hostile witness and, although he adamantly denied providing Appellant with
drugs at the time the interceptions were recorded, in terms of Fink's investigator "he had an interest
in telling Marty Lyons the things we wanted to be told so that he could get in turn something that
he wanted." N.T. 6/13/11, pp. 115-18. Ultimately, Fink uncovered no evidence to support an
entrapment defense, nor did he find any indication that any of the information found towards the
end of the investigation would lend credence to Appellant's contention that the information
constituted "jokes." N.T. 9/19/11, p. 60.
Fink also recognized that mental health experts opined that Appellant had a "serious mental
health problem." N.T. 8/26/10, pp. 72-73. Accordingly, Appellant was evaluated by Dr. Strochak
and Dr. Cohen for purposes of determining whether to proceed with a mental illness defense. N.T.
(2) because it was Fink's request that the District Attorney share as much information as early as possible with him to
avoid further publicity. N.T. 6/13/11, pp. 69-71; see Exh. J-2.
42 Appellant did not appear at the preliminary hearing, however, because he checked himself into Warminster Hospital
[Mental Health Unit] the night before it was scheduled. N.T. 11/24/08, pp. 148-49. A police officer witnessed
Appellant in the waiting room in the hospital, saw a television show with his picture on it announcing that he failed
to appear at his preliminary hearing, and thereafter arrested him. N.T. l l/24/08, p. 149. Appellant was later granted
bail and was placed on house arrest. N.T. 8/26/10, p. 90.
Page 34 of 112
11/24/08, p. 162; N.T. 8/26/10, pp. 74-75. Fink discussed the insanity affirmative defense with
Appellant. N.T. 9/19111, p. 27. However, both doctors found Appellant to be competent to stand
trial. N.T. 11/24/08, pp. 162-63. Dr. Strochak was of the opinion that Appellant was not legally
insane at the time the instant crimes were committed, despite his March 20, 2005 e-mail to Fink
indicating that the "Minnesota Multi-Phasic Index" (personality test) suggests "severe mental
disturbance" on the part of Appellant. N.T. 11/24/08, pp. 164-65; N.T. 8/26/10, pp. 82-85, 86-87;
N.T. 9119/11, p. 58. See Exh. P-8.
Fink testified that Appellant's house arrest was revoked and Appellant was remanded back
to the BCCF following his cocaine use and bail was set thereafter in March of 2005. Fink recalled
receiving a letter from Dr. Cohen on March 22, 2005 which indicated that it is important that
Appellant continue to take prescribed medications while incarcerated. N.T. 8/26110, pp. 88-90; See
Exh. P-9. Fink instructed his secretary to send correspondence to BCCF on March 23, 2005
attaching a copy of Dr. Cohen's letter (Exh. P-9). Furthermore, Fink identified a letter sent on
March 29, 2005 to the BCCF Mental Health Department requesting that Appellant continue to
receive his medications as prescribed. N.T. 8/26/10, pp. 91-92, 101-102; See Exh. P-10, Exh. P-
l 1.
Fink requested a CD ROM of the intercepted conversations, however, he did not recall
exactly how many hours or how much time the tapes encompassed. He testified that he recalled
the detectives having difficulty transposing the tapes to a CD ROM and, therefore, they provided
him with copies of the actual cassette tapes. N.T. 11124/08, pp. 98-99. Fink admitted that he
listened to the tapes, however, he did not listen to all of them and could not estimate exactly how
much he listened to. N.T. 11/24/08, p. 99; N.T. 11/19/11, p. 30. He specifically recalled the end
part of the tapes where Appellant instructs Mr. Samios on "what he wants him to do" and that this
Page 35 of 112
portion did not constitute "a short time." However, Fink relied on his investigator, Marty Lyons,
to listen to the tapes in their entirety. N.T. 11/24/08, pp. 99, 101; N.T. 11/19/11, p. 30. He instructed
Lyons to review the tapes and pay attention to not only the words that were said but also the tone
of voice used by the parties being intercepted, whether they sounded like they are joking, whether
they sounded high or like they are puffing cigarettes or doing drugs, etc. Once Lyons finished
listening to the tapes, he detailed everything that would be of interest to Fink's theory of
entrapment and informed him of such via e-mail and subsequent in-person conversations. N.T.
11/24/08, pp. 101-102, 179-80. The e-mails were introduced into evidence as Exhibit D-1.
The first e-mail, which was in response to Fink's request that Lyons conduct a complete
review of the tapes, indicated that Lyons found certain tapes which exhibited mistakes in the
copying process, including parts of Tape Nos. 3, 4, 5 and 9. N.T. 11/24/08, pp. 110-111.
He recalled that Lyons indicated that there were areas in the tape that sounded like "he had
been cut off'43 and that there were gaps in the tape. Fink brought this directly to the attention of
the investigating officer, Detective Carroll, who explained that while making the recordings, he
accidently inserted a previously used tape as opposed to a new blank tape at a part of the
interceptions that Fink did not find significant. Fink received an excised version of a transcript of
the interceptions from the District Attorney's Office. N.T. 11/24/08, pp. 104-111. Additionally,
Fink described an e-mail from Lyons indicating that there was a mistake made in the copying of
one of the tapes. N.T. 2/07/11, 94-95; See Exh. P-78. Later in his testimony, Fink stated that there
was one (1) problem that he identified with the taping regarding the malfunction in the recorder
43 Fink elaborated that this meant that the voice that was being intercepted had gone down in volume or the tape
sounded clear and no one was talking. N.T. 11124/08, p. 103. Exhibit P-79 constitutes an e-mail from Lyons to Fink
describing the dates of the tapes which contained supposed errors in the copying process. Lyons met with Detective
Carroll to review his perceived errors. Fink received more accurate copies of the tapes thereafter. N.T. 2/07/1 I, pp.
96-101.
Page 36 of 112
wherein a tape that had two sides was flipped onto auto reverse and, therefore, seconds of the other
side were taped over." N.T. 6/13/11, p. 152; N.T. 9!19/11, pp. 33-34. Furthermore, one of the
intercept tapes (Tape 10) ended in mid-sentence. N.T. 6/13/11, p. 158. He described these as
"minor" technical problems involving the recording of the tape. N.T. 911911 I, p. 59. Fink contacted
Detective Carroll who remedied the problem and sent a complete and corrected copy. N.T. 2/07/11,
p. 95.
Fink testified that both he and Appellant listened to the interceptions in the District
Attorney's Office prior to the preliminary hearing.45 N.T. 11/24/08, p. 142; N.T. 9119/11, p. 84.
The portion of the tapes which they both listened to at this time totaled approximately twenty (20)
to thirty (30) minutes.46 N.T. 11/24/08, p. 142; N.T. 2/07/11, p. 131. Although he had instructed
Appellant not to react to the interceptions that were played at this time, Fink did not follow his
own instructions, and he reacted to what he perceived as "very dangerous" words spoken by
Appellant. He stated that these words made Appellant seem like an "evil" person and they
"dehumanized" him. N.T. 11/24/08, pp. 151-153. He explained that the statements made by
Appellant during the intercepts were "devastating" in the sense that "it was worse than instructing
someone to engage in these actions. It was more like personal guru instruction to someone as to
how to live their life and how to be a hit man." Fink agreed that following his review of the
intercepted conversations, it became "less a matter of cross-examination and more a matter of
trying to limit the damage." N.T. 9/19/11, p. 83.
44
Fink testified this would constitute a violation of the Wiretap Act, however, it would be a technical violation which
would not result in suppression. N.T.9/19/11, p. 88.
45
Furthermore, when Appellant was on house arrest, Fink made a copy of the tapes for Appellant to review. N.T.
11/24/08, pp. 157-58; N.T. 9/19/11, pp. 85-86.
46
This included much of the content played for Judge Biehn during Appellant's sentencing proceeding. N.T. 9/l9/l l,
p. 84.
Page 37 of 112
.-- ..
Following his review of what he perceived to be more incriminatory statements made to
Samios in furtherance of the solicitation, Fink noted as follows:
The beginning of the tapes, from earlier days and much earlier times was not of as
much interest to me because, unless in the beginning of the tapes he was saying,
'I'm going to make a big joke at [the] end of these tapes,' I don't see how it could
have affected my determination.
N.T.11/24/08,pp. IOO-OI;seeN.T. 9/19/11,pp. 59-60.
Fink indicated that the Commonwealth transcribed portions of the recorded conversations,
but they were summaries and not word-for-word verbatim transcripts. N.T. 9/19/11, pp. 31-32.
Fink was aware that the currency collected from Samios was confiscated; however, he
never examined it and did not recall whether or not it was dusted for Appellant's fingerprints. N.T.
11/24/08, pp. 138-39; N.T. 2/07/11, p. 177; N.T. 9/19/11, p. 35.
According to his independent review of the tapes prior to the guilty plea, Fink testified that
the intended victim was Mr. Witthauer as well as his wife and child.47 N.T. 11/24/08, pp. 168-69.
Fink characterized Mr. Witthauer as a holdover tenant. However, it was Fink's "vague
recollection" that when Mrs. Witthauer sold Appellant the property, there was an agreement that
the family was allowed to stay in the house. N.T. 2/07/11, pp. 189, 194-95.
Fink filed a suppression motion with regard to the wiretaps; however, after a thorough
review of the wiretap statute and related caselaw, and after consultation with co-counsel Tauber,
he determined with his staff attorneys, as well as Appellant, that this motion would be meritless.
(emphasis supplied)48 N.T. 11/24/08, pp. 122-23, 173; N.T. 2/07/11, pp. 12-13, 148-53; N.T.
2/07/11, pp. 112-13; N.T. 9/19/11, p. 61. In arriving at this conclusion, Fink reviewed the Wiretap
47 At his guilty plea, Appellant agreed that he was entering a guilty plea to two (2) separate counts of criminal attempt
to commit aggravated assault to different individuals. See N.T. 3/28/05, p. 13.
48
This included review of whether Detective Carrol! established probable cause for the issuance of an in-home
interception authorization order. N.T. 2/07/11, pp. 145-46.
Page 38 of 112
Act.49 N.T. 2/07/11, pp. 13-17; N.T. 9/19/11, pp. 60-61. His outline of all the potential "attacks
which could be launched on the wire" were contained in his file, of which Appellant then had
possession" N.T. 11/24/08, pp. 124-25; N.T. 9/19/11, p. 74. Fink testified that he had not had
the opportunity to review his file since 2005. N.T. 9/19/11, p. 74. Furthermore, Fink, Tauber, and
other attorney's from Tauber's firm examined the Affidavit of Probable Cause for the issuance of
the wiretap order and determined that "there was probable cause if you deleted the items which
[Appellant] [was] contending were false." N.T. 9/19/11, p. 44. Fink could not specifically recall
if he checked whether the tapes were sealed or the chain of custody; however, he assured Appellant
that he had investigated every avenue upon which the wiretaps could be challenged. N.T.
11/24/08, pp. 123-24, 137. He later testified that it was his belief that Detective Carroll had the
tapes in his possession throughout the entirety ofthis case. N.T. 2/07/11, pp. 108, 125, 129; N.T.
11/24/08, p. 137. Further, he explained to Guarrasi that by entering a guilty plea he was waiving
his right for the motion to be heard. N.T. 11/24/08, pp. 125-26. Fink did not recall receiving any
monitor records/master logs pursuant to the interceptions in this case. N.T. 2/07/11, pp. 116, 166.
Fink believed that Appellant's words contained in the interceptions and his directions to
Samios were damning and sufficient to potentially constitute Solicitation to Commit Murder. N. T.
11/24/08, pp. 119-20. Regardless, he filed a Petition for Habeas Corpus, challenging the
sufficiency of the evidence to establish each element of each charge. N.T. 11/19/10, p. 117. A
49 Fink explained that the District Attorney designated an Assistant District Attorney to make interceptions of Mr.
Samios and Appellant's conversations, as required by the Wiretap Act. Appellant went through the painstaking
analysis of attempting to establish that because the District Attorney in the instant case was a Chief Deputy/Deputy
District Attorney at the time the interceptions were authorized, this was a violation of the Wiretap Act. Fink succinctly
responded as follows: "I think it's not relevant for this reason: I think that a Deputy District Attorney as well as a
Chief Deputy District Attorney or any of the inclusive provisions you can use to denominate District Attorneys
includes an Assistant District Attorney." N.T. 2/07/11, pp. 23-57.
soFink stated that Appellant never denied it was both his and Mr. Samios' voices on the intercepted tapes, nor did
Appellant indicate that he was not physically present in Bucks County at the time they were recorded. N.T. 9/19/11,
61·62
Page 39 of 112
conference on the Habeas Corpus Petition was held in Judge Biehn's chambers, with both defense
counsel and the District Attorney present. Fink testified that it occurred before the guilty plea.
N.T. 11/19110, p. 113; N.T. 9/19/11, p. 95. In discussing the Petition for Habeas Corpus further,
Fink recalled that it was submitted to Judge Biehn on the stipulated facts (i.e., the Habeas Corpus
document that established the factual basis for Appellant's plea) and, therefore, there was no in-
court evidentiary hearing. N.T. 2/07/11, p. 11.
He described the Habeas Corpus document, which was used to establish the factual basis
of Appellant's plea, as follows:
To the best of my recollection, this is the document which was prepared for
the purpose of a determination at my request by Judge Biehn at a writ of habeas
corpus, the facts being submitted to him as the facts in light best seen pro
prosecution.
In other words, I was asking Judge Biehn to give us an opinion as to whether
or not the evidence seen in the best light as favor- most favorable to the prosecution
would support a verdict of guilty of attempted murder. We briefed it, we presented
the facts to him, and conferenced it with him, and presented a writ of habeas to him.
N.T. 11/24/08, p. 135. The District Attorney prepared this document. Nevertheless, Fink testified
that he had the opportunity to review it and it was his opinion that the District Attorney "was
casting [the facts] a little towards the side of fairness to Mr. Guarrasi instead of overstepping him."
N.T. 11/24/08, p. 136.
With regard to the statements made by Appellant pursuant to the transcriptions as they
appear in the Habeas Corpus document, Fink testified as follows:
... I believe that the extract that was basically what I have said is the very worst
things that [Appellant] said, and that's what was admitted into evidence. The part
where the crime was planned and the part where [Appellant] [was] offering money
to Samios and those portions, I did listen to. And I told [Appellant] that I thought
that they were ...just some of the worst things I've ever heard. And that was in this
extract.
Page 40 of 112
N.T. 2/07/11, p. 162.
In terms of the nolo contendere and guilty but mentally ill plea, he met with Appellant a
number of times between the preliminary hearing and the guilty plea. N.T. 11/24/08, p. 126. He
could not recall meeting Appellant in his holding cell prior to the plea; however, it was something
that he normally would do. N. T. 11/19/10, pp. 159-60. Because Appellant requested another law
firm to "check everything" Fink had done on the case, all of the attorneys met with Appellant and
discussed the evidence against him, the possibility of a guilty plea and any trial tactics. Appellant
was " ... very interested in our opinions and the reasons for them and analyzing them." Fink
indicated that Appellant understood that, ultimately, it was the consensus of the attorneys that his
best course of action was to pursue a guilty plea. Fink stated, however, that he was quite certain
that he informed Appellant it was his ultimate and personal decision as to how he wanted to
proceed and the lawyers could only express their opinion on the matter. Fink testified that " ... I
took great pains to make sure that [Appellant] understood ... " and that it was his belief Appellant
did in fact understand the decision to enter a guilty plea, the reasons supporting this decision and
that " ... [Appellant] made a very intelligent decision by decided to plead guilty." N.T. 11/24/08,
pp. 126-128, 159-160, 173-174, 178; N.T. 9/19/11, pp. 67, 72. Fink later reiterated that he was
satisfied in the number of his meetings with Appellant and additional communications with him,
and that he understood what the facts of the case were. N.T. 9/19/11, pp. 57, 72.
Fink explained that his strategy in advising Appellant to plead guilty plea was a result of
his legal research into the elements of the crimes charged and what evidence was required for the
Commonwealth to prove those elements beyond a reasonable doubt, his determination that there
were no defenses applicable, and the fact that the probable cause affidavits pursuant to the court
order and arrest warrant substantially set forth the facts and established probable cause, even with
Page 41 of 112
.. .-......
the excising of statements made by the informants that Appellant alleged were misstatements of
fact. Furthermore, he also considered his meeting with Samios, as set forth above. He described
Samios as being ''eager to assist the Commonwealth and eager to help prosecute Mr. Guarrasi,"
and he did not have any information that Samios did not voluntarily consent to the interceptions.
N.T. 9/19/11, pp. 63-66, 77.
Fink testified and we accepted that he did not threaten Appellant in any way to force him
to enter a guilty plea, nor did he make a recommendation as to his ultimate sentence. Furthermore,
Fink did not promise Appellant a specific amount of time he would serve, nor did he promise him
the place of incarceration. N.T. 11/24/08, pp. 161, 170; N.T. 9/19/11, pp. 67-68.51 In fact, he
testified that an individual who enters a nolo contendere and guilty but mentally ill plea will be
classified first by the state, after which a determination is made as to where an individual will serve
their sentence. Appellant understood that it would be an open guilty plea. Fink also stated that he
did not witness the other attorneys with whom he was working threaten Appellant in any way.
N.T. 11/24/08, pp. 161, 171.
Fink testified that he anticipated Appellant would be sentenced to a four (4) to eight (8)
year sentence of incarceration. However, he informed Appellant that he expected the best a judge
could possibly do for him was a two (2) to four (4) year sentence; however, he cautioned Appellant
that "two years is an awfully small number for a crime of this seriousness." He informed Appellant
of this prediction and he testified that he "believe[d] that [Appellant] understood everything that I
was telling him." N.T. 11/24/08, pp. 117, 129.
Fink further testified that prior to the guilty plea, Appellant informed him that he had not
been taking his medication, which was brought to Judge Biehn' s attention. However, Fink did not
51
Fink assumed that Appellant would lose his attorney's license, but another attorney was representing Appellant on
that issue. N.T. 9/19/11, p. 68.
Page 42 of 112
have any reason to believe that Appellant was incompetent up to the date of the guilty plea and
during the entire plea proceedings. It was his opinion that Appellant understood the proceedings
in their entirety. Furthermore, if there had been any question of Appellant's competence to
proceed, Fink would have brought that to the Court's attention and asked for a competency
evaluation by a psychiatrist. N.T. l 1/19/10, p. 154; N.T. 9/19/11, p. 68-72; see N.T. 3/28/05, pp.
16, 22.
Fink also had no recollection of Appellant discussing the withdrawal of his guilty plea prior
to sentencing, and he did not see any grounds upon which the plea could be withdrawn. He recalled,
however, that he received "some correspondence with Tauber's firm about withdrawing the plea
for him and their declining to do so." N.T. 11/24/08, pp. 133-134; N.T. 9/19/11, p. 81.
At his Guilty but Mentally Ill/Sentencing Hearing, the Commonwealth played a
"compilation" of the recorded intercepts, which comprised a total of twenty-one (21) minutes. See
N.T. 5/25/05, p. 31. Fink testified that he assumed this compilation was put together by the District
Attorney. He was of the opinion that
" ... the compilation ... which is an extraction and a summary of the tapes, was not
including a number of things that were detrimental to you ... when I got it and
reviewed it that it was fairly done, in that it could have ... been extracted to have
worse things that you had said during these conversations."
Fink reviewed the compilation prior to it being played in court. N.T. 9/19/11, pp. 38, 82.
When asked about Appellant's prosecutorial misconduct claim, Fink opined that the case
was handled by the District Attorney's Office professionally and both he and Appellant were
treated fairly and without any malice. N.T. 11/24/08, p. 172. Fink further testified that he did not
witness or suspect any intentional misconduct. He stated that he did not have any evidence that
any documents or interceptions were falsified. N.T. 9/19/11, p. 80.
Page 43 of 112
~--.
c. Detective Timothy Carroll's PCRA Testimony52
Detective Carroll testified that he has been a law enforcement officer since I 977, and his
current position is Detective with the Bucks County District Attorney's Office. He began his law
enforcement career with the Bensalem Township Police Department (BTPD), first as a police
officer and then as a detective, until he left on September 14, 1998 to become a county detective.
N.T. 11/24/08, p. 182; N.T. 9/19/11, p. 180; N.T. 10/11/13, p. 47.
While holding the rank of detective with the BTPD, Carroll received an "A,, Certification
in March of 1994 through the Pennsylvania State Police to perform consensual and nonconsensual
telephone interceptions or "consensual wires." He has maintained the "A" Certification throughout
his employment with the BTPD, and he has been a Detective with the Bucks County District
Attorney's Office since September 14, 1998. In order to ensure that his "A" Certification remained
current, there was no lapse of service between his employment with BTPD and his employment
with the District Attorney's Office and, as a result, on September 14, 1998 he was on record for
employment by both agencies. As of the last day of his testimony in this litigation, Carroll
maintained his "A" Certification. N.T. 9/19/11, p. 47; N.T. 10/11/13, pp. 48-51, 54-55; see Exh.
C-PCRA-6.
As a result of his "A" Certification, Carroll had experience in wiretaps and electronic
surveillance, and had recorded hundreds of phone calls and supervised many in-person meetings.
He was also responsible for copying the intercepted tapes and proof-reading transcriptions of said
tapes. N.T. 11/24/08, p. 182.
52
Detective Carroll testified at Appellant's counseled hearing on November 24, 2008. Detective Carroll was recalled
by Appellant, after Appellant was permitted to represent himself, and testified at the September 19, 20 l l, August 17,
2012, May 3, August 12, 'August 13, October IO, October l l, 2013 and June 30, 2014 hearings. In the interest of
judicial economy, we have summarized Detective Carroll's collective testimony and categorized it by relevant subject
matter so as to avoid duplication.
Page 44 of 112
Carroll was the lead investigator, although he worked "hand in hand" with Detective
Mosiniak. N.T. 8/17/12, p. 6. Carroll was responsible for the recording, monitoring and copying
of tapes relating to the one-party consent intercepts within Appellant's residence. N.T. 9/19/11,
pp. 180-18 I. None of the phone calls were intercepted before authorization was issued by Judge
Gambardella, who was then Deputy District Attorney (DDA) at the time, nor were any in-home
intercepts done without court approval by Judge Biehn. N.T. 10/10/13, pp. 19-20.
Carroll identified the Memorandum of Consent on Case Number 253-2004, which was
prepared by him and then signed by both him and Samios on February 27, 2004.53 He also
identified the Application for Intercept Order authored by DDA Gambardella, the Memorandum
of Request, and the Affidavit of Probable Cause attached thereto and authored by him and sworn
to and subscribed by both him and Detective Mosiniak. N.T. 8/17/12, pp. 66, 71, 76; N.T. 6/30/14,
pp. 51-53. He testified that the Affidavit of Probable Cause was true and accurate to the best of
his knowledge, information and belief. N.T. 6/30/14, p. 53.
Carroll was not physically present at the time DDA Gambardella and Detective Mosiniak
presented these documents to President Judge Heckler because he was with Sarnios outside the
courthouse in order to record a telephone conversation with Appellant made in response to
voicemail messages left by Appellant for Sarnios. N.T. 8/17/12, pp. 75, 86-88; N.T. 5/03/13, pp.
57-58; N.T. 10/11/13, pp. 78-79. Carroll explained that he left the newly amended Probable Cause
Affidavit in the courthouse and he "left with a consent form and met Mr. Sarnios, and Mr. Samios
was re-consented by phone by Mr. Garnbardella... (a]nd Detective Mosiniak brought that consent
53Although the last in-person intercept occurred on the evening of February 26, 2004, which led investigatingofficers
to consult with DDA Gambardella and obtain a second intercept order covering suspicions of more serious criminal
offenses based on the content of the intercepts, the process of preparing the documents and "reconsenting" Mr. Samios
a second time, as well as presenting the information to an available Common Pleas Judge, took until the end of the
business day of February 27, 2004. N.T. 5/03/13, pp. 57~60;N.T. 8/12/13, p. 46.
Page 45 of 112
form back and took all of the required forms to Judge Heckler, and I was with Mr. Samios at
Doylestown." N.T. 10/11/13, p. 79.
Carroll also identified all documents on Case No. 254-2004, including the February 23,
2004 Application for Intercept Order as well as the attached Affidavit of Probable Cause authored,
sworn to and subscribed by him (and co-sworn to and subscribed by Detective Mosiniak). The
information contained within the Affidavit of Probable Cause was true and accurate to the best of
Detective Carroll's knowledge, information and belief. N.T. 10/11/13, pp. 78-79; N.T. 6/30/14,
pp. 55-56.
Carroll testified that DDA Gambardella was responsible for determining Samios' knowing
and willful consent. N.T. 8/17/12, 121. Carroll had no knowledge of any promises or offers made
to Samios to secure his cooperation and/or consent. N.T. 10/10/13, 130; N.T. 10/11/13, 58, 59,
93. Furthermore, Samios did not hesitate to be consensualized and have those conversations
recorded. N.T. 10/11/13, pp. 59, 93.
Detective Carroll authored the Memorandum of Interception54 as well as the Affidavits of
Probable Cause. N.T. 8/17/12, p. 49. He explained that in preparing the Memorandum of
Interception, he "listened to the tapes in their context and with the understanding of the
investigation and decided in my [his] summary what was pertinent, [and] tried to summarize it in
that way." He did not believe that anything in the Memorandum of Interception mischaracterized
any portion of the intercepted conversations. Any parentheses present in these documents were
utilized to show the context of the words. N.T. 5/03/12, pp. 112-113, 115; N.T. 10/11/13, p. 103.
The Affidavit of Probable Cause attached to the Criminal Complaint was dated March 2,
2004. N.T. 8/12/13, p. 152. In terms of this Affidavit, Carroll confirmed that, as stated directly in
54
The Memorandum of Interception was entered into evidence as C-PCRA-5. It was not made until 2010 after
Detective Carroll reviewed the intercept tapes. N.T. 9/19/11, pp. 207-08; N.T. 5/03/I3, p. 113.
Page 46 of 112
the Affidavit, on March 2, 2004, Ms. Fryling and Mr. Samios were no longer living at the 703
North Street, Doylestown, Bucks County property, because they had reported to Detective Carroll
that they believed they were the victims of Appellant who may have been involved in a theft by
deception of that property.55 N.T. 8/17/12, pp. 96-98; N.T. 10/10/13, pp. 130-31. Following a
meeting with Fryling and Samios, it was further revealed to Carroll that they had known Appellant
for some time, that he was involved in an insurance fraud scheme and, additionally, it was his plan
to turn the 703 North Street property into a brothel.56 N.T. 8/17/12, p. 98; N.T. 10/10/13, pp. 163-
64; N.T. 10/11/13, p. 58; N.T. 6/30/14, pp. 64, 67. Carroll testified that the Affidavits of Probable
Cause supporting the wire application did not contain known incorrect statements of fact. N.T.
8/17/12, p. 116. In relation to this alleged fraud, the Affidavit stated that Appellant continued to
pay for lodging for Fryling and Samios at two (2) motels in Bucks County at this same time. N.T.
8/12/13, pp. 150-51. This was also indicated on the Affidavit of Probable Cause relating to the
February 27, 2004 Application for the interceptions. N.T. 8/12/13, pp. 151-53, 163. It is
uncontroverted that at the beginning of 2004, Fryling and Samios were in danger of losing their
real property and that Samios was in need of money for his family. N.T. 8/12/13, p. 167; N.T.
10/10/13, p. 142.
ss Detective Carroll testified that pursuant to a February I 8, 2004 interview with Ms. Fryling and Mr. Samios, and as
memorialized in the February 23, 2004 Probable Cause Affidavit pursuant to 224-2004, they averred that they were
living at the 703 North Street property at this time. N.T. 8/17/12, p. l 02; N.T. 10/10/13, pp. 156-57, 162. However,
because Appellant was never charged or convicted of any crimes related to this property or the mobile home that Ms.
Fryling and Mr. Samios subsequently obtained from Appellant, we found all testimony regarding this property to be
irrelevant. SeeN.T. 8/17/12, pp. 108-11; N.T. 10/10/13, pp. 133-34, 135, 156-57, 162.
56
Although he does not recall specifically taking notes from the interviews of Fryling and/or Samios, he no longer
has them. N.T. 9/19/11, pp. 185-86; N.T. 8/17/12, pp. 45-48. He testified that "[tjhe written record of that interaction
· between myself, Fryling, Samios, and also Detective Mosiniak was incorporated in the officer's memo of request"
relative to his request that DDA Gambardella approve electronic intercept surveillance. N.T. 9/19/11, p. 186; N.T.
8/17/12, pp. 47-48. Further, that information is also reflected in the Probable Cause Affidavits relating to the Criminal
Complaint as well as the interception requests. N.T. 9/19/11, 186.
Page 47 of112
Carroll testified that all one-party consensual interceptions were conducted and intercepted
in Bucks County, and he was present with Mr. Samios for all of the recorded telephone calls. N.T.
8/12/13, pp. 55-56; N.T. 10/10/13, pp. 119, 152; N.T. 10/11/13, p. 64. In terms of Appellant's
location during intercepted telephone calls, Carroll testified that "there may have been times when"
Appellant was in Baltimore. N.T. 5/03/13, pp. 96-97, 98; N.T. 8/12/13, p. 57. There were no
wiretap applications or orders of approval to intercept conversations in Maryland regarding this
case, nor did Detective Carroll or any other investigating officer travel to Baltimore on case. N.T.
5/03/13, pp. 98-99; N.T. 8/12/13, p. 147.
Six (6) of the tapes were in analog, ninety (90) minute, two-sided standard cassette tape
form representing recordings from telephone conversations, whereas the remaining tapes
represented in-person intercepts and were two (2) hour long digital tapes (or "NT" tapes), as this
is easier to conceal on the person and they are tapes oflonger duration. N.T. 9/19/11, p. 184; N.T.
8/12/13, pp. 95, 163. Carroll stated that a total of 9.12 hours of actual conversation had been
intercepted, and the remaining seventy-one (71) minutes include "drive time" and Detective
Carroll's preamble. In regards to related civil litigation, pursuant to a request for admissions,
Carroll approximated that there were seventeen ( 17) hours' worth of tapes relating to the instant
case. He later explained that the 17 hours encompasses the total available hours of both the analog
and digital tapes themselves, not considering the actual amount of content placed on the tapes.
N.T. 10/10113, pp. 98-107.
When Carroll copied the digital tapes to analog, he created more than one (1) cassette tape
per digital tape. N.T. 9/19/11, p. 184. He testified that, as a result, there are sixteen (16) "working
copies" created from ten (I 0) original tapes representing the recorded interceptions conducted in
this case, which occurred from February 23 through March 2, 2004. N.T. 9/19/11, p. 184; N.T.
Page 48 of112
8/12/13, p. 125; N.T. 1 Oil 0/13, pp. 93-94. The working copies were made in order to maintain the
integrity of the original recordings and represent the intercepted conversations in their entirety.
N.T. 10/11/13, pp. 61-62, 95-96. In terms of the actual recording of the in-person meetings between
Samios and Appellant, Detective Carroll used what he referred to as an "extended ear
microphone," which is placed in the ear of the consenting party, who in this case was Samios, He
explained that" ... there is a wire that runs from that microphone, like a one-eighth inch plug that
plugs directly into the input of the cassette recorder, that extending mic picks up both sides of the
conversations through the ear mic." Carroll testified that he could listen in real time to the
conversations by placing a set of earphones in the earphone jack of the recorder which he had on
his person, but he did not always choose to do so. He was not sure if the ear mic ever fell out of
Samios' ear during any of these in-person interceptions, but he did not believe this ever happened,
as it would have resulted in an ambient sound and/or Samios' voice on the tape sounding more
distant. N.T. 8/12/13, pp. 97-99, 117-18.
The original tapes were contained in envelopes, with each envelope containing the case
number, the Bucks County Detectives' case number, the number of the tape, the master log
number, whether the tape is original or copy, the detective assigned, the date of the interception,
the location of the interception, the consenting individual and the target or the person intercepted.
N.T. 6/30/14, pp. 27-28, 37-38; see Exh. C-PCRA-8 (copies of the original envelopes). Mr. Herbert
Joe previously inspected these envelopes on Appellant's behalf. Carroll identified the contents
contained on each envelope as related to each individual tape. N.T. 6/30/14, pp. 36-51.
In terms of the content of the tapes, Carroll testified that prior to any intercept there is a
discussion between him and the confidential informant regarding whether it is "likely [the C.I.]
could even talk to this person about these crimes?" In the instant case, there was an agreement
Page 49 of 112
with Samios at the time he consented to the interceptions that he could discuss the scheme further
with Appellant. N.T. 10/11/13, p. 65.
Carroll explained that there were two (2) different types of recording devices utilized in
the instant case. The first was a cassette recorder/player and the second was a Sony NT digital
cassette recorder. N.T. 8/17/12, p. 140; 10/11/13, p. 73. The NT digital cassette recorder was
placed on Samios' body and Samios was not aware of how to tum the machine off. After all four
(4) in-person meetings Detective Carroll had to tum the recorder off himself. Furthermore, when
the machine is turned on or off the tape captures the sound of the mechanism of the tape. N.T.
10/11/13, pp. 73-75; N.T. 6/30/14, p. 87. However, when the tape runs out, it turns itself off. N.T.
10/11/13, p. 75.
Carroll testified that on some tapes it generally appears that a different pen was used to
mark the date on the tape itself, and this was the result of instances in which the tape was not yet
full and was therefore kept in his possession and used on a subsequent day to record additional
interceptions. He testified he never went back and changed the date on any of the tapes after the
fact. N.T. 8/17/12, pp. 133-35.
Each tape contains a preamble, which identifies Detective Carroll, the location, the date
and the time. Further, each tape includes times when a second or subsequent telephone call is
made, as well as any corresponding telephone numbers. N.T. 9/19/11, p. 187; N.T. 8/12/13, p. 72;
N.T. 10/11/13, p. 103; N.T. 6/30/14, p. 83. In each interception, Appellant was the target and
Samios was the consenting individual. N.T. 6/30/14, pp. 37-51.
Tapes 1 and 2 represent recorded telephone conversations between Appellant and Samios
from February 23, 2004.57 N.T. 5/03/13, pp. 68-69. Specifically, Tape 1 contained three (3)
57For the foregoing explanations regarding what is contained on Tapes 1-10, Detective Carroll relied on his
Memorandum of Interception, entered into evidence as C~PCRA-5.
Page 50 of 112
..-....
separate phone conversations between Samios and Appellant of varying lengths which occurred
from approximately 7:00 p.m. to 7:50 p.m., and the place of interception was the Doylestown
Township Police Department Headquarters (DTPDHQ).58 N.T. 8/12/13, p. 126; 6/30/14, p. 38; see
Exh. C-PCRA-5.
The telephone conversation between Samios and Appellant contained on Tape 2 occurred
from 9:30 p.m. to 10: 12 p.m., and the calls were also intercepted at the DTPDHQ. 59 This tape also
contains content of a call that went to Appellant's voicemail. N.T. 8/12/13, pp. 127-28; N.T.
6/30114, p. 40; see Exh. C-PCRA-5.
It was uncontroverted that no interceptions were made of any conversations on February
24, 2004. N.T. 8/12/13, p. 128.
Tape 3 contains phone conversations from February 25 and February 26, 2004. N.T.
5/03/13, p. 69. The phone calls occurring on February 25, 2004 took place between 6:44 p.m. to
9:59 p.m., respectively.t" N.T. 8/12/13, p. 130; see C-PCRA-5. Furthermore, Tape 3 also reflects
a ten (10) minute phone conversation at 12:27 p.m., a one (1) minute conversation at 2:25 p.m.,
and voicemails left by Samios for Appellant which occurred as early as 9:28 a.m. N.T. 8/12/13,
pp. 130-31; see C-PCRA-5. The interceptions on Tape 3 were made at the Pineville Tavern,
Pineville, Wrightstown Township, Bucks County and Doylestown Township, Bucks County. N.T.
6/30/14, pp. 40-41; see Exh. C-PCRA-5.
58
The DTPDHQ is located in Doylestown Township, Bucks County. N.T. 6/30/14, pp. 44-45.
59
This tape first contains a recorded telephone call made from Samios to Appellant, in which he left a voicemail and
Appellant returned his call shortly thereafter. N.T. 8/12/13, pp. 127-28.
60
These conversations were scattered throughout this time period and encompassed six (6) calls of varying lengths.
See C-PCRA-5.
Page 51 of 112
Tape 4 consists of an in-person body wire intercept that occurred on February 26, 2004 at
Appellant's home office located at 2995 York Road, Furlong, Warwick Township, Bucks County.
N.T. 5/03/13, p. 71; N.T. 10/11/13, p. 75; N.T. 6/30/14, pp. 41-42; see Exh. C-PCRA-5. This
occurred from approximately 2:45 p.m. to 4:35 p.rn. N.T. 8/12/13, p. 131. During this in-person
meeting, Appellant made a $500 payment to Samios that he was owed as a result of his completion
of work unrelated to the instant investigation. N.T. 8/13/13, p. 35. In order to get this currency,
Samios and Appellant travelled to a nearby bank, and detectives kept the two under surveillance.
N.T. 10/11/13, pp. 75-76. Detective Carroll permitted Sarnios to keep the currency because the
payment was unrelated to the crimes underlying Appellant's conviction in the instant case. N.T.
8/13/13, pp. 35-36; N.T. 10/10/13, p. 144; N.T. 10/11/13, p. 77. After this meeting, the focus of
the investigation shifted away from fraud (insurance or otherwise) to the solicitation by Appellant
to harm Mr. Witthauer. N.T. 10/11/13, pp. 77-78.
Tape 5 contains two (2) telephone conversations which took place on February 27, 2004,
from approximately 4:17 p.m. and 5:32 p.m., which were intercepted by Detective Carroll at the
DTPDHQ. N.T. 5/03/13, p. 71; N.T. 8/12/13, p. 132; N.T. 6/30/14, p. 42; see Exh. C-PCRA-5.
The first call is a response to several voicemails left by Appellant to Samios whereas the second
call is only two (2) seconds long before the tape stops. N.T. 8/12/13, p. 132. This call occurred
one (1) hour prior to an in-person meeting which was recorded on Tape 6. N.T. 10/11/13, p. 100;
see Exh. C-PCRA-5.
Tape 6 contains a two (2) hour digital body recorder type tape. N.T. 5/03/13, p. 74. The
recording of the face-to-face conversations between Appellant and Sarnios which comprise Tape
6 were intercepted at Appellant's parents' property in Gardenville, Plumstead Township, Bucks
Page 52 of 112
County.61 N.T. 5/03/13, p. 77; N.T. 10/11/13, p. 80; N.T. 6/30/14, p. 43; see Exh. C-PCRA 5.
This in-person meeting occurred from about 6:32 p.m. to 7:52 p.m. on February 27, 2004. N.T.
8/12/13, pp. 132-33; see C-PCRA-5. Tape 6 contains the $2,000.00 payment made by Appellant
to Samios, N.T. 5/03/13, p. 77; N.T. 8/13/13, pp. 48-49; N.T. 10/11/13, p. 83; N.T. 6/30/14, pp.
43-44. Detective Carroll and other investigators conducted surveillance during this intercept;
however, it was more difficult to watch the Gardenville property because it was situated along a
two-lane highway and, therefore, the officers conducted drive-bys and waited at a nearby
intersection. N.T. 10/11/13, p. 81.
Tape 7 contains two (2) telephone calls placed by Samios to Appellant that went to
Appellant's voicemail on February 28, 2004 at 5:11 p.m., and another placed at 5:19 p.m., which
Appellant answered, with that conversation lasing approximately 1.5 minutes. N.T. 5/03/13, p.
79; N.T. 8/12/13, pp. 133-34; see Exh. C-PCRA-5. The calls were intercepted at the DTPDHQ.
N.T. 6/30/14, p. 44; see Exh. C-PCRA-5. The call made at 5:11 p.m. was an outgoing call to
Appellant, as prior to this, Appellant called Mr. Samios and left a voicemail message. N.T.
8/12/13, pp. 133-34.
Tape 8 contained an in-person meeting which occurred at Appellant's home office at 2995
York Road, Furlong, Bucks County, on February 28, 2004. N.T. 8/12/13, pp. 134-35; N.T.
6/30/14, pp. 45-46; see Exh. C-PCRA-5. This meeting took place from 5:45 p.m. to 7:31 p.m. N.T.
8/12/13, pp. 134-35; see Exh. C-PCRA-5. During this meeting, Samios received paperwork from
Appellant meant "to purport [sic] some legitimacy to be at the Lower State Road property," which
he turned over to Detective Carroll following the meeting. N.T. 10/11/13, pp. 87-88; N.T. 6/30/14,
61 Detective Carroll testified that he did not physically view this meeting nor did any video surveillance record said
meeting. N.T. 5/03/13, 89.
Page 53 of 112
pp. 46, 68. Included in the paperwork was a blue print of the Lower State Road property as well
as a letter typed by Appellant. N.T. 6/30/14, pp. 47-48.
Tape 9 represents a series of telephone calls, including a five (5) minute conversation
lasting from 7:39 p.m. to 7:44 p.m, N.T. 5/03/13, p. 80; N.T. 8/12/13, pp. 135-36; see Exh. C-
PCRA-5. Furthermore, one conversation from March 1, 2004, occurring at approximately 9:43
a.rn. and lasting only forty-one (41) seconds, is also reflected on Tape 9. The second call on Tape
9 was placed at 10:20 a.m. to Appellant but went to Appellant's voicemail. The third and fourth
calls took place at 6:06 p.m. and 6:17 p.m., and again both went to Appellant's voicemail. The
next call intercepted was placed at 7:00 p.m. and constituted a three-minute-twenty-second
conversation. Another call lasting ten (10) seconds was intercepted at 9:51 p.m., which was
followed by a thirty (30) second incoming call. Finally, a call from March 2, 2004 from 5:52 p.m.
to 5:54 p.m. is contained therein.62 N.T. 8/12/13, pp. 136-139; see Exh. C-PCRA-5. All of these
telephone communications were intercepted by Detective Carroll in Doylestown and Plumstead
Township, Bucks County. N.T. 6/30/14, pp. 49-50; see C-PCRA-5.
Tape 10 consists of an in-person interception, which occurred from 10:42 p.m. on March
1, 2004 to 12:52 a.m. on March 2, 2004 at Appellant's parents' property in Gardenville, Plumstead
Township, Bucks County. N.T. 8/12/13, p. 138; 10/11/13, p. 94; see Exh. C-PCRA-5.
We accepted Detective Carroll's qualifications as an expert witness in the field of narcotics
investigation in this case. N.T. 8/13/13/, pp. 96-98. Carroll testified that he did not have any
knowledge of Appellant being provided cocaine at the time the conversations between him and
Samios were intercepted and recorded. N.T. 8/17/12, p. 117; N.T. 5/03/13, pp. 103, 109; N.T.
I 0/11/13, p. 12. Carroll further testified that in his conversations with Samios, Samios did not
62This call is contained on Tape 9 despite the fact that it actually occurred one (1) day after the previous calls, as
Detective Carroll testified that he still had room on Tape 9. N.T. 8/12/13, p. 139.
Page 54 of 112
,-.. ,
appear to be under the influence of alcohol or drugs at any point during the course of the
investigation. Carroll testified that ifSamios appeared to be under the influence, he would not have
continued. N.T. 10/11/13, pp. 58, 60-61, 76-77, 80, 85.
Carroll recalled that he made numerous copies of the tapes, which were provided to
Attorney Fink and his investigator Lyons, and he was later advised by Lyons that there were issues
with some of the tapes that were first copied in December of 2004. N.T. 8/12/13, pp. 101-02, 110;
N.T. 10/11/13, p. 96. These issues were later addressed by Detective Carroll's explanations, as set
forth below, and another set of corrected copies was provided to Fink sometime prior to
Appellant's guilty plea hearing, although Detective Carroll could not specifically recall exactly
when those tapes were provided. N.T. 8/12/13, pp. 122-23.
In terms of the "gaps" present in some of the transcriptions, Detective Carroll testified as
follows:
During the investigation ... which lasted ... a couple weeks, there were
numerous phone calls to Mr. Guarrasi that resulted in voice mail where Samios in
my presence over his cell phone, with me recording, it would connect with
Guarrasi's cell phone or office and would ... [result in] voicemail.
So I just kept a tape-instead of using a new tape for every phone call, I
kept the tape in my possession and we continued to make calls ... (W]hat I used to
record the call is an ear microphone and standard cassette recorder with a cassette
tape. During one of the conversations with the tape, as it should in the machine,
flipped to the second side, it automatically does that. One of my habits is, before
the next call I always check the tape to make sure I'm ready to go.
On one of these occasions after the tape had flipped to the second side and
before making another call, I opened the cassette recorder to make sure my tape
was good, closed it, made my call, didn't realize that when I opened the recorder,
it flipped back to the first side of the tape, so my next call was taping over something
that had been on side one. I realized it. And that's what happened on that particular
tape occasion.
Page 55 of 112
N.T. 11124/08, pp. 183-84. Carroll further explained that although he did not agree with defense
counsel's characterization of the spaces between the phone calls/voice mails as "gaps," he testified
that if a telephone call is made and/or Samios received a voicemail, he would tum the tape off.
Therefore, this would constitute the space in the tapes between the phone calls. N.T. 11/24/08, pp.
184-185.
Carroll indicated that Tape 3 had oral communications made out of chronological order.
N.T. 9/19/11, pp. 182-83; N.T. 8/12/13, p. 116. He explained that once a recording has filled one
side of a cassette tape, it automatically flips to the other side and continues recording. N.T.
8/17112, p. 143. He explained this constituted an unintentional tape-over of part of the previously
recorded conversations on his part. N.T. 8/12/13, p. 115. He further explained: "When I listened
to [Tape 3] I realized there were some of the calls that should have been on B had actually overrode
some conversations on A ... and that was my error." N.T. 8/12/13, pp. 116-17; N.T. 10/11/13, pp.
70-71. He later specified that on Tape 3, two (2) calls from February 26, 2004 inadvertently taped
over call 7 from February 25, 2004 for approximately 172 seconds. N.T. 10/11/13, pp. 67, 71.
Carroll recalled that there was not a lot of material conversation that was taped over other than
where Appellant and Samios should meet next in person. N.T. 10/11/13, pp. 69-70.
Tape 5 stopped recording during a telephone call. N.T. 9/19/11, pp. 182-83; N.T. 10/11/13,
p. 89. Carroll testified that he was unsure exactly why the tape had stopped recording but explained
it was his opinion it was a mechanical issue with the recorder. N.T. 8/12/13, pp. 97-99, 115, 117-
18; N.T. 10/11/13, p. 89. He recalled that the remaining conversation which did not record
regarded where Samios and Appellant should meet the next day, and that meeting was intercepted
and recorded in Tape 6. N.T. 8/12/13, pp. 98-99.
Page 56 of 112
Tape 6 is orally dated April 27, 2004 in Detective Carroll's preamble,63 which was an
admitted mistake on Carroll's part, and the actual date of this interception was February 27, 2004.
N.T. 9/19/11, pp. 182-83; N.T. 8/12/13, p. 72; N.T. 10/11/13, p. 84. Additionally, the last call on
the tape was cut off, although Carroll could not recall why the recorder stopped. N.T. 8/17/12, pp.
37-38.
Appellant attempted to establish that Tape 6 was not protected from alteration or edit
because "the red tab was not punched out." N.T. 8/17/12, p. 129. Carroll explained as follows:
.. .I believe that's the digital, small digital tapes that were the in-person tapes. They
have a very small red clip or a little mechanism that you punch through to keep the
tape from being taped over. I think they can be pushed back. I'm not sure. So that
could have been pushed through and pushed back. I'm not sure. But I don't know
that they necessarily protect tape-over as well as an analog tape, because an analog
tape, you actually break the tab on top. There's - on either side of the top of the
tape you break down a tab, and it prevents the wheels to be operated by the tape
recorder. I'm not so sure that's exactly the technology with the digital tapes.
There's a tab to punch through, but I think that tab can be returned for a tape-over.
N.T. 8/17/12, pp. 130-31; see also pp. 137-138 (identifying a photograph of one of the tapes in
which the red tab is not pushed through). It is Detective Carroll's general practice to push the red
tabs all the way through following the recording of said tapes. N.T. 8/17/12, p. 138.
Tape 10 stopped mid-sentence as the tape ran out of time. N.T. 9/19/11, pp. 182-183; N.T.
8/12/13, pp. 113, 115; N.T. 8/13/13, pp. 83, 84-85; N.T. 10/11/13, pp. 91-92. Carroll testified that
he did not recall how long of a period of time the conversation continued; however, he called
Samios to instruct him to leave twice, and Samios followed Detective Carroll's directions just a
few minutes later. N.T. 5/03/13, pp. 94-95; N.T. 8/13/13, pp. 84-85. Thus, the conversation only
continued for a few minutes. N.T. 8/13/13, p. 85.
63 This tape contains the payment of$2,000 from Appellant to Samios. N.T. 8/17/12, p. 37.
Page 57 of 112
Carroll testified that during the in-person interceptions, he and other law enforcement
officers conducted surveillance in the form of driving by the target location and waiting at nearby
locations. He testified that sometimes they would momentarily lose visual contact of Samios. N.T.
8/I 7/12, pp. 124-25. There was no video surveillance with regard to any of the in-person
interceptions. N.T. 8/12/13, p. 132; N.T. 6/30/14, pp. 67-69. Furthermore, Carroll did not recall
any summaries he made regarding the voicemails left by Appellant to Samios. N.T. 8/12/13, pp.
141-42.
Carroll did not intentionally delete or make any edits to the tapes; nor did he do anything
in an attempt to purposefully prejudice Appellant. N.T. 11124/08, pp. 185-86; N.T. 8/12/13, p. 92;
N.T. 10/11/13, pp. 62, 95-96. Furthermore, he did not splice together different conversations. N.T.
10/11/13, pp. 62-63.
Carroll had possession of the original analog and digital tapes until they were turned over
to storage. N.T. 11/24/08, p. 186; N.T. 9/19/11, p. 181; N.T. 8/17/12, pp. 50-51, 55; N.T. 10/11/13,
p. 65. Thereafter, Chief McAteer maintained custody of the tapes in the evidence locker located in
the detective's section of the District Attorney's Office. N.T. 9119/11, p. 193; N.T. 10/11/13, pp.
65-66. Carroll identified a portion of the Master Tape Log which reflected these tapes being
logged into evidence, and in which certain entries were crossed out in black ink, as they related to
other cases. The Master Tape Log represented an excerpt from a larger log kept by all county
detectives who conduct recordings for any of their respective cases. N.T. 8/12/13, pp. 83, 84-85,
Exh. P-75.
Carroll testified that Chief McAteer kept these original tapes in his custody until he gave
them back to Detective Carroll, who met with Herbert Joe in May of 2009. At this time, a bar code
Page 58 of 112
was noted on the tapes, as the county had purchased a bar code evidence system in 2004.64
Following this meeting, the tapes were transported to the Bucks County storage facility at the
Thiokol warehouse where they were placed into a temporary evidence locker. N.T. 9/19/11, pp.
193-194, 196.
Chief Deputy County Detective McAteer had assigned an evidence number for Appellant's
case on or before March 12, 2004. N.T. 8/17/12, p. 49. However, prior to this, Detective Carroll
provided Detective McDonough with $2,000,65 a file and other items seized pursuant to a search
warrant on Appellant's residence.66 N.T. 9/19/11, p. 192.
Carroll recalled that the murder-for-hire scheme was developed mostly throughout in-
person intercepted meetings between Samios and Appellant, which occurred from February 26 to
March 2, 2004. N.T. 8/13/13, pp. 61-62. He stated that "I think in the context of these ten tapes
and the seven days or eight days of the interaction between [Appellant] and Samios, it's very clear
there what's being said." Samios did not use explicitly specific language regarding this scheme
because Appellant had previously chided him for doing so while talking to him via cell phone.
N.T. 8/13/13, pp. 91-92. Furthermore, Carroll indicated that throughout the time in which the
interceptions were made, Samios and Appellant had discussions about other matters that were
unrelated and/or irrelevant to the instant case, including the alleged sale of a truck from Samios to
Appellant which occurred during the general time period of the investigation. N.T. 10/10/13, pp.
110-16; N.T. 10/11/13, pp. 43-45. Based on his knowledge of the facts underlying the case and
,,.
64
See N.T. 6/30/14, pp. 30-31 (Detective Carroll's corroborating testimony).
65
Detective Carroll received this directly from Samios on February 27, 2004. N.T. 10/10/13, p. 136.
66
Detective McDonough then submitted the currency and other items seized pursuant to the search warrant to Chief
McAteer. N.T. 8/17/12, pp. 52-53.
Page 59 of 112
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his careful review of all intercepted conversations, and with regard to the $500 payment made to
Samios in the course of the investigation, Detective Carroll found that
"[t]he 2,000 in my mind and in the context of the tapes was clearly for the crime,
for committing the crimes. It was a down payment. And then [Appellant] talks later
about paying the balance, so Ithink it's separate payments. I think there's payment
for work, and I think there's payment clearly for the solicitation."
N.T. 10/10/13, pp. 114-15. Specifically, in terms of discussions regarding the sale of the truck,
Detective Carroll determined that this was separate from the solicitation concerning the murder of
Mr. Witthauer. N.T. 10/10/13, p. 115; N.T. 10/11/13, p. 20.
During the course of the foregoing PCRA proceedings, Mr. Samios died and Detective
Carroll testified that he attended his viewing. N.T. 6/30/14, pp. 60-61; see Exh. C-PCRA-9.
d. Chief Christopher F. McAteer, Jr.'s PCRA Testimony
Chief McAteer began his career in law enforcement as a police officer and then a detective
with the Bristol Township Police Department in Bucks County, being employed there from April
1974 to October 1990. Thereafter, he became a Special Agent with the Pennsylvania Attorney
General's Office until 1997, when he began work at the Bucks County District Attorney's Office
as a detective. He was promoted to Deputy Chief of Detectives in 2000. N.T. 5/03/13, pp. 43-44.
In 2004, at the time the investigation underlying Appellant's instant conviction was under way,
ChiefMcAteer held the position of Deputy Chief. N.T. 5/03/13, p. 9.
Chief McAteer was the evidence custodian for all evidence that was submitted by
detectives pertaining to this investigation. Chief McAteer recalled receiving the intercepts and the
original Memorandums of Request, Consent and Approval for the intercepts from Detective
Carroll, and he then secured them in a temporary evidence locker in the Bucks County District
Attorney's Office. N.T. 5/03/13, pp. 9, 16, 45. This is reflected on Property Receipt 4667. See
Exh. P-129. ChiefMcAteer was the only person who had a key to that evidence locker. He later
Page 60 of 112
....-... .--. ..
removed the tapes from the evidence locker and turned them over to Detective Carroll, who
transported them to an individual (Mr. Herbert Joe) who was going to review the tapes on behalf
of Appellant. Following review, Detective Carroll turned them over for permanent storage at the
Bucks County evidence warehouse located at Thiokol. N.T. 5/03/13, pp. 45-46.
The $2,000.00 provided to Samios by Appellant that was seized during the execution of a
search warrant of Appellant's home office was signed into evidence on March 4, 2004, as reflected
by Property Receipt 4666. N.T. 5/03/13, pp. 10, 17; see Exh. P-130. ChiefMcAteer explained that
he maintains an evidence locker that he placed the currency in. He testified that there were no
photographs taken of the currency nor was there a recording of the serial numbers of the money.
Further, ChiefMcAteer was of the belief that the money had been forfeited. N.T. 5/03/13, pp. 10-
11, 42. The evidence seized during the execution of the search warrant was a.lso later secured at
the Thiokol warehouse. N.T. 5/03/13, p. 47.
e. Dr. Cohen's PCRA Testimony
Appellant called Dr. Cohen as his own witness in an attempt to establish that he was
incompetent at the time he entered his nolo contenderelguilty but mentally ill plea. We accepted
Dr. Cohen as an expert in the field of psychology; however, we denied Appellant's request that he
be admitted as an expert in the field of pharmacology. N.T. 11119/10, pp. 28-30.
Dr. Cohen was contacted by Friends Hospital67 when Appellant was discharged, and was
asked if he would continue follow up treatment with Appellant. He saw Appellant from November
24, 2004 to March 17, 200?, approximately twice per week f9.J forty-five (45) minute sessions.
N.T. 11/19/10, pp. 31, 87. Dr. Cohen diagnosed Appellant with "Bipolar disorder, severe with
delusions; actually bipolar disorder, severe with psychotic features." N.T. 11/19/10, p. 40.
67
Friends Hospital is a psychiatric hospital. N.T. 11/19/10, p. 33.
Page 61 of 112
. ..-.. •.
Appellant was also diagnosed with a seizure disorder and polysubstance abuse. N.T. 11/19/10, pp.
67-69. Dr. Cohen further testified that in terms of a dissociative identity disorder,
That was a rule out dissociative identity disorder. That's a phrase we use when we
think it might be going on but we're not sure yet. And certainly by history it seemed
like there was most likely an issue of dissociative identity disorder. And that
formerly was known as multiple personality disorder.
N .T. 11/19/10, p. 40. He later explained that he would have had to conduct further diagnosing and
testing to confirm this potential diagnosis. N.T. 11/19/10, pp. 99-100. Dr. Cohen was of the
opinion that Appellant needed prescribed medication to become stable, and on March 22, 2005,
after he learned that Appellant was taken back to BCCF, he wrote Attorney Fink expressing his
concern that he should be maintained on his medication. N.T. 11119/10, pp. 41-42; see Exh. P-9.
Dr. Cohen testified that the medical records provided from BCCF (Exh. P-15) showed no
record of any medications administered to Appellant in March of 2005. 68 Furthermore, notes from
March 31, 2005 indicated that Appellant had not had his medications "in awhile" and he was
experiencing "probable delusions and judgment and insight [were] poor." N.T. 11/19/10, pp. 59-
62. Dr. Cohen was not familiar with the procedures at the BCCF Mental Health Unit and did not
have personal knowledge that the prison withdrew medication from Appellant. N.T. 11/19/10, pp.
87-88.
Dr. Cohen related that some of the medications Appellant was on would require "titrating
downward," or decreasing the medication, so as to monitor whether symptoms are re-emerging
before the medication was fully out of his system. N.T. 11/19/10, pp. 74-75. He testified that if
Appellant was taken off his medications there could have been a re-emergence of symptoms. N.T.
68
The District Attorney and Appellant stipulated that, if called to testify, Ms. Linda Dunn, who is the records custodian
and responsible for the directions of the dispensary at the BCCF, would explain that any medication that is not noted
on the dispensary sheet was not prescribed and, on the other hand, if the medication that was prescribed was not
marked as given, then it was not given to an inmate. N.T. 6/13/11, pp. 176-79.
Page 62 of 112
.--......
11/19/10, p. 81. However, Dr. Cohen did not have knowledge as to whether Appellant was
experiencing any withdrawal or symptoms at the time of his plea, and he explained that withdrawal
differs from one person to the next as well as from one medication to the next. N.T. 11/19/10, pp.
91-92.
Notwithstanding this prior testimony, Dr. Cohen testified at Appellant's Guilty but
Mentally Ill/Sentencing Hearing that he believed Mr. Guarrasi to be competent as of the last time
he saw him on March 17, 2005. N.T. 11/19/10, p. 86; see N.T. 5/25/05, p. 85.
f. Alan Tauber'sPCRA Testimony
Mr. Tauber was retained because Appellant was "considering going to trial and [wasn't]
sure whether or not [he was] going to have Mr. Fink try the case, (Mr. Tauber's] firm try it, or a
combination of both." N.T. 6/13/11, p. 127. However, neither Tauber nor members of his firm
entered their appearance on Appellant's behalf N.T. 6/13/11, p. 139. Tauber recalled meeting with
both Appellant and Fink on one occasion, and both he and other partners in his firm met with him
personally on other occasions. They also communicated via telephone conference and e-mail
correspondence. N.T. 6/13/11, pp. 125-26, 128, 136-37. Tauber and other members of his firm
recommended that he waive litigating the suppression motions, as a result of the determination
that it would not make strategic sense to litigate the motion in the context of working out a guilty
plea. He believed there may have been meritorious issues, but he was unable to say whether the
suppression motion would have prevailed or not. N.T. 6/13/11, pp. 135-136. He did recall,
however, that Fink believed the suppression motion would not be successful. N.T. 6/13/11, pp.
140-141.
Prior to Appellant's guilty plea, Tauber went down to the holding cell with Fink to talk to
him. N.T. 6/13/11, pp. 128-129. He testified that it was solely Appellant's decision to enter a
Page 63 of 112
guilty plea, and he did not promise Appellant a sentence, nor did any other attorney to his
knowledge. N.T. 6/13/11, pp. 141-42.
Mr. Tauber was present at Appellant's guilty plea hearing, and recalled that he did not see
any reason to believe that Appellant did not understand the proceedings. N.T. 6/13/11, p. 143.
Ultimately, he believed that there was no specific basis or grounds to withdraw Appellant's guilty
plea. N.T. 6/13/11, p. 145.
He recalled communicating with Appellant regarding the filing of a motion to withdraw
guilty plea following sentencing; however, Tauber suggested Appellant had to do that through a
PCRA Petition. N .T. 6/13/11, p. 130; see Exh. P-92. Tauber did not file a withdrawal of guilty plea
issue based on the following:
I didn't believe there was a record-based issue that questioned the competency of
the guilty plea at that time. I believe that from what I witnessed and what my
understanding of the record was, that there was an adequate basis for the guilty
plea, and the colloquy was appropriate, and I didn't believe there was a foundation
for it.
Furthermore, he testified that he informed Appellant of this via a letter dated July 26, 2005, in
response to earlier correspondence from Appellant dated July 14, 2005. If Appellant had made the
request to file a motion to withdraw guilty plea in a timely manner, he would have filed a motion
with the Court of Common Pleas thereafter. Moreover, Tauber concluded that " .. .if there was a
record basis that I saw for withdrawal of the guilty plea and he had asked me to withdraw it, I
would have raised that ... " as an issue on direct appeal. N.T. 6/13/11, pp. 144-146.
Finally, Tauber testified that he recalled Appellant was very unhappy with his sentence.
N. T. 6/13/11, p. 146.
Page 64 of 112
--,
g. T. Gary Gambardella's PCRA Testimony
Judge Gambardella worked in the Bucks County District Attorney's Office from 1988 to
2010. He maintained the office of Assistant District Attorney from the time he began with the
District Attorney's Office until the time he left, albeit holding different titles, i.e., Deputy, Senior
Deputy, Chief Deputy, and Chief of Special Investigations. He was the prosecuting attorney in this
case and, thus, was involved in the intercepts. He was authorized to sign criminal informations, as
were all other senior attorneys in the office in 2004.69 N.T. 9/19/1 l, pp. 97, 117-119.
On December 28, 2000, Judge Gambardella was provided with the authority to supervise
the conducting of intercept surveillance by then-District Attorney Gibbons. N.T. 9/19/11, pp. 98,
119.
In terms of his record keeping responsibilities pursuant to Section 5714, Judge
Gambardella went through a number of the records that were generated with regard to the
interceptions here and ensured everything statutorily required was complied with. He testified that
ultimately the tapes were in the possession of the detectives and they were kept in a safe location.
N.T. 9/19/11, pp. 99, 101, 112.
Both Judge Gambardella and then District Attorney Gibbons were aware of the initial
investigation into Appellant's involvement in a solicitation to commit insurance fraud. The
investigating detectives kept them both apprised of what was occurring during the course of this
investigation. N.T. 9/19111, pp. 128-131.
69
Exhibit C-PCRA-2 consists of documentation filed with the Clerk of Courts dated January 11, 2000, designating
First Assistant District Attorney David W. Zellis, then-chief of prosecution, to sign criminal informations on behalf
of District Attorney Gibbons. Mr. Zellis endorsed Appellant's criminal information in the instant case. N.T. 1/20/12,
pp. 46-47.
Page 65 of 112
The Clerk of Courts' files relevant to the interceptions in the instant case, No. CP-09-MD-
0000253-2004 ("253-2004") and CP-09-MD-0000254 ("254-2004"), were incorporated into the
PCRA record.
Regarding Case 254-2004, Judge Gambardella identified numerous documents therein,
including a Sealing Order signed in his presence by Judge Biehn upon application of Judge
Gambardella on February 23, 2004. Judge Gambardella also identified the Application for an
Order Authorizing the Consensual Interception of Oral Communications in a Home attached
thereto, which he signed and attested to the contents of the facts contained in the Affidavit of
Probable Cause (authored by Detectives Carroll and Mosiniak), as well as Judge Gambardella's
letter of authorization from District Attorney Gibbons to approve the interception of
communications under the provisions of Section 5704(2)(ii). The Order authorizing interception
of oral communications at Appellant's office (at 2995 York Road, Furlong, Warwick Township,
Bucks County), as well as "any residence, of target, Joseph Guarrasi, his owned or commonly used
places of abode, or any home or place wherein oral communications may occur relating to the
same consenting party and participants or anyone else acting on his behalf," was also signed by
Judge Biehn on February 23, 2014 in Judge Gambardella's presence.I" N.T. 9/19/11, pp.119-123,
128.
Judge Gambardella had reviewed all the physical evidence pertaining to the intercept tapes
and ensured they were kept in a safe location by the investigating detectives. He also insured that
the recording requirements of the Wiretap Act (specifically Section 5714) were complied with by
doing the following:
70
President Judge Heckler designated Judge Biehn as having wire authorization. N. T. 9/19/11, 171.
Page 66 of 112
-- .. - ...
...__
I met with the informant. I did what we call in layman's language a
consensualization of the informant71 to make sure what he was doing was voluntary.
It was. In the instance in which we believed that it was-that the conversations
may be taken in a place where had you [sic] an expectation of privacy, I obtained
judicial authorization to have the recordings done in those places. I made sure all
the paperwork was in order. And I signed the affidavits that were required.
N.T. 9/19/11, pp. 99-100.
Judge Gambardella met with Samios in person for the first consensualization. He identified
the Memorandum of Consent of Mr. Samios, which was signed in his presence and dated February
23, 2004. Samios appeared to be alert and oriented and there was no indication that he was under
the influence. There were no promises or threats made by either Judge Gambardella or anyone in
his presence to force Mr. Samios to consent. Following Judge Gambardella's meeting with Samios,
and his subsequent signing of the Memorandum of Consent and his review of the Affidavit of
Probable Cause, he approved this one-party interception. The Memorandum of Consent was dated
February 13, 2004 at 12:56 p.m. N.T. 9/19/11, p. 123-127.
Judge Gambardella listened to each and every tape shortly after the conversations were
intercepted. Judge Gambardella testified that although this was not necessarily required by the
statute, in an abundance of caution he wished to make the Court aware that the focus of the
investigation had changed from the insurance fraud to something more serious and, therefore, he
secured an additional order and "reconsented" Mr. Samios." Samios was "reconsented" a second
time by Judge Gambardella over the phone. Judge Gambardella testified that he recognized
Samios' voice and there was no hesitation in his cooperation. No threats or promises were made
in order to get Samios to consent. N.T. 9/19/11, pp. 104, 130-131, 137, 141.
71 See also N.T. 9/19/11, p. 119.
72 AccordN.T. 10/10/13, pp. 130-32; N.T. 10/11/13, pp. 77-78 (Detective Carroll's corroborating testimony).
Page 67 of 112
The documents regarding this "reconsent" were contained in 253-2004. Judge Gambardella
identified the following documents contained in that file which ultimately led to Judge Heckler's
February 27, 2004 Order73 authorizing the intercepts: an Application for an Order Authorizing the
Consensual Interception of Oral Communications in a Home, District Attorney Gibbon's
authorization for Mr. Gambardella to approve the interception of communications pursuant to
Section 5704(2)(ii), the Affidavit of Probable Cause74 including additional information gained as
a result of the prior intercepted conversations, Officer's Memorandum of Request including
additional information to include Criminal Solicitation to Commit Aggravated Assault and related
crimes, as well as a Memorandum of Consent to include additional crimes as well. N.T. 9/19/11,
pp. 132-138.
President Judge David W. Heckler signed this second Order Authorizing the Consensual
Interception of Oral Communications on February 27, 2004 in Judge Gambardella's presence.75
Furthermore, a sealing order, as requested by Judge Gambardella, was simultaneously endorsed
by Judge Heckler on February 27, 2004. Judge Gambardella thereafter sealed the documents. N.T.
9/19/11, pp. 133, 138-139.
Judge Gambardella testified that he did not tamper with any of the documents contained
within either 254-2004 or 253-2004 following the entrance of the sealing order. N.T. 9/19/11, p.
163.
73
This Order also related to Appellant's office/residence located at 2995 York Road, Furlong, Warwick Township,
Bucks County, as well as "any residence of target, Joseph Guarrasi, his owned or commonly used places of abode or
any home or place wherein oral communications may occur ... "
74
This document was sworn to and subscribed by investigating officers in Judge Heckler's presence. N.T. 9/19/11,
p. 135.
75
Although these documents were prepared for Judge Biehn, he was unavailable at this time and, therefore, Judge
Heckler signed for Judge Biehn. N. T. 9/19/ 11, p. I 71.
Page 68 of 112
Following additional intercepted conversations pursuant to the February 27, 2004 Order,
Judge Gambardella was kept apprised of the contents of the interceptions and, in fact, listened to
those interceptions himself. He kept District Attorney Gibbons apprised as well, and she also
listened to certain portions ofthe interceptions. N.T. 9/19/11, pp. 141-143.
Judge Gambardella only recalled one (1) single problem with the tapes, which was the
auto-reverse issue in which Detective Carroll informed him that one part of the tape had been
inadvertently taped over. N.T. 9/19/11, p. 115.
Judge Gambardella recalled that through Samios, they gave Appellant an opportunity to
recant and he did not do so. Judge Gambardella recalled that when they had Samios call Appellant
to inform him that he was "heading there now to kill (the Witthauers]," Appellant told him to "call
me tomorrow when it's all done." N.T. 9/19/11, p. 144.
Then-District Attorney Gibbons made the ultimate decision to file charges against
Appellant in discussions with then-DDA Gambardella and the investigating detectives. N.T.
9/19/11, pp. 144-45.
Judge Gambardella provided Fink with some information ahead of time, and he also
provided Fink with an opportunity to listen to relevant portions of the tapes with his client in the
District Attorney's Office. Fink was shocked as to what was contained in the tapes, and as a result
he reacted to them. Judge Gambardella later provided Fink with all of the discoverable materials.
The discovery was not filed in the Clerk of Courts file as a result of Fink's request not to do so in
his effort to "keep the publicity down in this case." N.T. 9/19/11, pp. 145-148.
At the preliminary hearing, Fink was provided with the opportunity to question Samios.
N.T. 9/19/11, p. 147.
Page 69 of 112
,-
In terms of the Habeas Corpus challenge to the charge of attempted murder or solicitation
to commit murder, Judge Gambardella testified that he had prepared a response in which he
summarized and quoted certain aspects of the interceptions, although there was no actual formal
transcription of the tapes because there had been no preliminary hearing in this case for Judge
Biehn to base a habeas ruling upon. Furthermore, he indicated that the Affidavit of Probable Cause
relating to the charges that were ultimately brought against Appellant constituted a summary of
the substance of the statements made by Ms. Fryling, Mr. Samios and those present in the
intercepted conversations. N.T. 9/19/11, pp. 148-151.
At the guilty plea proceeding, Judge Gambardella testified that Appellant appeared to be
competent, oriented and he answered questions appropriately. Furthermore, Judge Gambardella
was of the impression that Appellant was feigning mental illness at this point, as he observed that
" ... when Judge Biehn was in court and would address him, I recall that he was almost lethargic in
his responses. And as soon as Judge Biehn got off the bench, he was very snappy and lively in his
talk." N.T. 9/19/11, pp. 155-156, 164.
Judge Gambardella prepared a "composite tape" of the interceptions which was played for
Judge Biehn at Appellant's Guilty but Mentally Ill/Sentencing Hearing. This composite was based
off of the copies of the interceptions provided to him by the investigating detectives. Appellant
appeared to be oriented during the course of the sentencing proceedings. He testified that "there
was no issue whatsoever in [his] mind" regarding competency of Appellant. N.T. 9/19/11, pp. 158,
164; see Exh. C-PCRA-1.
h. David Zellis' PCRA Testimony
Mr. Zellis testified that he initialed the Criminal Information on District Attorney Gibbons'
behalf He and other senior attorneys in the District Attorney's Office were authorized to sign
Page 70 of 112
·.~ ..
criminal informations. He recalled that he either signed his name or his initials following a review
for any problems or obvious defects in the informations themselves. Besides endorsing the
Criminal Information, however, he was not involved in any other aspect of the instant case. N.T.
8/17112, pp. 21-22, 32-33.
III. ISSUES
Following the close of the sixteen (16) evidentiary hearings, Appellant set forth the claims
upon which he believes he is entitled to relief, under the dictates of the PCRA, in his Brief in
Support thereof, filed on September 4, 2014, as follows, verbatim:
1) Counsels ineffectiveness caused the Appellant to enter an involuntary and
unknowing plea by having a severely mentally ill Appellant, unmedicated for
several days, stand for an open guilty plea, while Title 50 Section 7402
Incompetent, where the Appellant wanted to go to trial and the Appellant was
innocent.
2) Counsels ineffectiveness caused the Appellant to enter an involuntary and
unknowing plea by failing to object or correct a patently defective guilty plea
colloquy, where Appellant wanted to go to trial, unaware of available
affirmative defenses, affirmative defenses that would have succeeded at trial,
and the Appellant is innocent as the legal requirements were not, and could not,
be met for crimes charged.
3) Counsels ineffectiveness caused the Appellant to enter an involuntary and
unknowing plea by failing to litigate an intercept suppression motion of
arguable merit, counsel admits would likely have won, and the intercepts were
the gravamen of the Commonwealth's case.
4) Counsels ineffectiveness caused the Appellant to enter an involuntary and
unknowing guilty plea by failing to undertake a reasonable investigation,
unaware of law fundamental to the case, abandoning requested discovery, and
stipulating to false facts which directly inculpated the Appellant, at an in-
chambers, off the record, Habeas Corpus hearing, with counsel paid in excess
of $250,000 dollars for Petitioner's legal defense.
5) The PCRA Hearing delays violate the Appellant's Due Process rights and the
DAO is precluded at law from alleging prejudice purported from Mr. Samios
Page 71 of 112
death pursuant to 42 Pa.C.S. 9543(b) and Commonwealth v. Renchenski, 616
Pa. 608, 52 A.3d 251 (Pa. 2012).
See "Brief for Appellant," 9/04/14, p. 4. We focus our analysis on these issues and find they
encompass the additional more detailed claims presented in Appellant's Amended Petition filed
on February 3, 20 I 0. 76
IV. ANALYSIS
a. Jurisdiction
The PCRA requires that any petition for post-conviction relief must be filed within one
year of the date judgment becomes final. 42 Pa.C.S. § 9545(b)(l). The Superior Court of
Pennsylvania affirmed Appellant's conviction and judgment of sentence on July 6, 2006.
Appellant did not seek review with the Supreme Court of Pennsylvania and, accordingly, he had
until approximately October 6, 2007 to file a timely PCRA Petition. Therefore, his initial pro se
Petition filed on June 29, 2007 is timely.
b. Waiver
We find that some claims raised pursuant to Appellant's brief filed on September 4, 2014
are waived and, as a result, we set forth the general rule of waiver below.
The entrance of a guilty plea "constitutes a waiver of all nonjurisdictional defects and
defenses" and "[wjhen a Appellant pleads guilty, he waives the right to challenge anything but the
legality of his sentence and the validity of his plea." Commonwealth v. Montgomery, 401 A.2d
318, 319 (Pa. 1979) (internal citations omitted). Accord Commonwealth v. Unger, 432 A.2d 146(Pa 1980); Commonwealth v. Khorey, 500 A.2d 462, 463 (Pa. Super. 1985).
76 We note that all issues presented in Appellant's Amended PCRA petition filed on February 3, 2010 were addressed
in his brief and, as a result, we will only analyze those claims in addition to the more detailed factual bases thereunder
as set forth in his amended petition.
Page 72 of 112
,...""' ....
Pennsylvania Rule of Criminal Procedure (Pa.R.Crim.P.) 902 (A)(l I) provides that a
PCRA Petitioner is required to provide all grounds for the relief requested in his PCRA Petition.
Furthermore, the Petitioner is required to set forth the facts supporting each ground that appear in
the record and the place where they appear in the record, as well as an identification of any
affidavits, documents, or other evidence showing supporting facts that are not of record.
Pa.R.Crim.P. 902(A)(12)(a) & (b).
It follows that a claim is waived where a petitioner fails to raise it in his PCRA Petition or
any amended petition filed thereafter. See Commonwealth v. Brown, 872 A.2d 1139, 1146 (Pa.
2005).
c. Prejudice
We previously denied the Commonwealth's "Motion to Deny and Dismiss PCRA Action
Based on Substantial Prejudice to the Commonwealth" on August 18, 2011. However, upon
consideration of the additional testimony and evidence presented pursuant to the nine (9) additional
evidentiary hearings which occurred following our denial, we will revisit the issue herein.
42 Pa.C.S. § 9543(b) provides as follows: "Even if the petitioner has met the requirements
of subsection (a), the petition shall be dismissed ifit appears at any time that, because of delay in
filing the petition, the Commonwealth has been prejudiced either in its ability to respond to the
petition or in its ability to re-try the petitioner." 42 Pa.C.S. § 9543(b) (emphasis added). Such a
delay has been interpreted to encompass a delay in the filing of an amended petition.
Commonwealth v. Markowitz, 32 A.3d 706, 712-13 (Pa. Super. 2011). More recently, in
Commonwealth v. Renchenski, 52 A.3d 251 (Pa. 2012), the Supreme Court of Pennsylvania
established the following:
Upon review, we find that the Commonwealth's construction of Section 9543(b) as
applicable to delays in filing either original or amended petitions is the most
Page 73 of 112
consistent with the legislative intent underlying the PCRA. Initially, we note that
Section 9543(b) was enacted as a part of the General Assembly's overhaul of the
post-conviction relief process in 1988 ... and the requirement that an evidentiary
hearing be held prior to dismissal for a delay in filing that causes prejudice to the
Commonwealth was added via the 1995 amendments to the PCRA, which also
created the one-year jurisdictional time bar ... We have observed that this one-year
time limitation, coupled with its few exceptions, reflects a legislative balance
between the competing concerns of the finality of adjudications and the reliability
of convictions. Section 9543(b) further demonstrates this balance by permitting a
PCRA court to dismiss a matter on grounds of delay, which promotes the interest
in finality, while requiring an evidentiary hearing where the Commonwealth must
prove prejudice, thereby protecting the reliability of the underlying conviction.
Similarly, as the Commonwealth points out, Section 9543(b) specifies that
prejudice can occur 'at any time,' indicating that it was not only the commencement
of PCRA proceedings with which the Legislature was concerned.
Renchenski, 52 A.3d at 259 (internal citations omitted). In dismissing the Appellant's PCRA
Petition based on prejudice resulting to the Commonwealth due to the delay in the filing of an
amended petition, the Court reasoned as follows:
In sum, we conclude that the Legislature has balanced the policy concerns
implicated by protracted litigation of PCRA claims and determined that, in certain
instances of substantial delay, the prejudice suffered by the Commonwealth as a
result of that delay, as demonstrated at an evidentiary hearing.justifies dismissal of
an original or amended petition.
Id. at 623-24. See also Commonwealth v. Bell, 706 A.2d 855, 859-60 (Pa. Super. 1988) (finding
prejudice existed rendering the Commonwealth unable to re-try a PCRA petitioner where the only
eyewitness to the offenses underlying his conviction was unavailable ).
Thus, based on the preceding caselaw, the Supreme Court of Pennsylvania has recognized
that the Commonwealth can assert prejudice even after a first petition is filed, and, therefore, the
examination of the existence of prejudice is not limited to the timing of the initial petition. As
such, we will review the Commonwealth's assertion of prejudice as a result of the protracted delay
of litigation in the instant case, as well as the delay in Appellant's filing of an amended petition.
Page 74 of 112
On February 17, 2011, Mr. Samios, who in this Court's estimation was a necessary and
material witness in the Commonwealth's case, died. His death occurred after our grant of
Appellant's request to proceed pro se and three (3) evidentiary hearings in which Appellant
represented himself It is unequivocal that Samios was present at Appellant's preliminary hearing
and, in fact, because of the waiver of that hearing, the District Attorney permitted Mr. Fink to
question Samios directly in order to get more information to attempt to establish the vitality of any
potential defense.
At the outset of his PCRA proceedings, Appellant filed numerous Motions to Remove
Attorney Elgart, and despite his representation by Attorney Cooper thereafter following counseled
hearings which had already concluded, he continually indicated his desire to proceed further pro
se. 77 At the time of the first hearing on January 23, 2008, until the date of the Grazier hearing on
October 1, 2009 (the initial "close" of proceedings), almost two (2) years had elapsed. Moreover,
we granted Appellant's Petition to Open [the record], and, to give the Commonwealth sufficient
notice of any new claims Appellant now raised, we ordered that he file an Amended PCRA petition
while providing the District Attorney a commensurate amount of time to respond. This Amended
Petition was not filed until February 3, 2010.
Our review of the facts supporting Appellant's conviction, as well as the evidence admitted
in the numerous PCRA hearings, confirms that Mr. Samios' testimony was essential to prove what
occurred during the face-to-face meetings with Appellant, including the receipt of the $2,000 down
payment as well as documents to corroborate his presence at the Lower State Road property.
Although there is a record of the conversations which took place during this time and Detective
Carroll attested that Mr. Samios provided him with the $2,000.00 following the in-person meeting
17
Appellant DEMANDED hearings by video, as opposed to in-person, which ultimately extended the delay between
hearings, due to the scarcity of video dates at Cresson SCI, the unavailability of witnesses, lawyers and the court.
Page 75 of 112
-
captured on Tape 6, there is no video or physical surveillance of the meeting. It would be in the
Commonwealth's interest for Mr. Samios to testify as to the content of conversations which were
not recorded in Tape 10, as a result of the tape being full. Furthermore, Appellant's argument
regarding a violation of the Wiretap Act regards his claim that Mr. Samios, in his own words, was
"on Heroin when coerced into consent, and that Commonwealth promised to have 703 North
Street, Doylestown, Pa, Deeded to Informants in exchange for consent," which implicates the
necessity of Samios' testimony. See "Amended PCRA," 2/03/10, ,r 5(A)(e)(i).
Moreover, Appellant alleges that the interceptions took place in North Wales, Montgomery
County, Pennsylvania and in Baltimore, Maryland, further necessitating Samios' testimony to the
contrary. See id. at ,r S(A)(f). Appellant also challenges the fact that there are no statements,
interview or police reports to corroborate Samios' statements that the investigation began in the
context of insurance fraud. See id. at ,r 6(A)( d)(ii).
We also incorporate by reference this prejudice analysis in terms of the relief sought by
Appellant, i.e., a withdrawal of his guilty plea. Where an Appellant seeks to withdraw his guilty
plea after sentence has been imposed, he must show that "manifest injustice will result ifhe is not
permitted to withdraw the plea." Commonwealth v. Kirsch, 930 A.2d 1282, 1284-85 (Pa. Super.
2007). Even when an Appellant seeks to withdraw his/her guilty plea prior to sentencing, which
is liberally granted as long as he/she offers a "fair and just" reason and asserts his/her innocence,
the trial court makes an exception for those cases in which substantial prejudice would inure to the
Commonwealth as the result of the grant of a new trial, which in this case would require witnesses,
prosecutors and defense counsel try a case fourteen years-old, and where an essential witness has
died. Id. at 1285.
Prejudice in this context is defined as follows:
Page 76 of 112
-~- .
. . . a showing that due to events occurring after the plea was entered, the
Commonwealth is placed in a worse position than it would have been had trial taken
place as scheduled. This follows from the fact that the consequence of granting the
motion is to put the parties back in the pre-trial stage of proceedings. This further
follows from the logical proposition that prejudice cannot be equated with the
Commonwealth being made to do something it was already obligated to do prior to
the entry of the plea.
Id. at 1286.
Pennsylvania caselaw dictates that the Commonwealth suffers substantial prejudice where
necessary witnesses become unavailable or reluctant to testify during the time period between the
guilty plea and the filing of a motion to withdraw a guilty plea. See Commonwealth v. Cole, 564
A.2d 203, 206 (Pa.Super. 1989); Commonwealth v. Carr, 543 A.2d 1232, 1234 (Pa.Super. 1988).
Although Carr involves the reluctance of family members, we find the following reasoning to be
applicable by extension to Mr. Samios' death in the instant case:
... the delays occasioned by the plea and subsequent motions for continuances by
appellant resulted in a shift in family sympathies from the child victim to appellant.
Though undoubtedly available in a technical sense, the reluctance of family
members to testify in a way which would cause the incarceration of appellant is
evident, and would have significantly impaired the prosecution of this case ...
Carr, 543 A.2d at 1234.
Appellant's allegation that the District Attorney's Office in any way delayed these
proceedings is frivolous and without merit. The record is replete with Appellant's engaging in a
"fishing expedition," and although we gave Appellant much leeway as a result of his prose status,
he incessantly attempted to not only amass additional trivial evidence from witnesses to establish
inapt new claims, he also entered into evidence dilatable exhibits collateral to this Petition. He
inundated this Court, the District Attorney and his appointed counsel with over fifteen (15) exhibit
"sets" containing documentation relative mostly to the civil litigation brought against many of the
Page 77 of 112
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individuals involved in his prosecution and defense in an attempt to establish minor contradictions
or inconsistent statements in various witnesses' testimony. This evidence was likewise without
merit.
Further, there were many collateral matters advanced by Appellant at the evidentiary
hearings that we considered but did not utilize in our analysis of his claims, as set forth below,
including the civil litigation between Appellant and Samios and Fryling regarding the Bill of Sale
for a truck and a Quiet Title action on the 703 North Street property, information regarding an
individual who was present at Appellant's residence during the execution of the search warrant
and whose computer was allegedly found to contain pornography, and Detective Carroll's phone
records, which did not in any way lessen the credibility of his testimony, all of which had no
bearing on the instant claims. Further, he challenged the efficacy of Judge Biehn's authority as
well as the authority of all individuals who were employed at the District Attorney's Office during
this relevant time period. He insisted on playing the intercepted tapes for the Court during
Detective Carroll's testimony, despite our independent review of all tapes in chronological order.
Ultimately, Appellant used the PCRA process as an attempt to re-try his case, and we find
Appellant strayed from his proposed summary of the evidence that he set forth at the August 26,
2010 hearing (the first prose hearing). N.T. 8/26/10, pp. 22-35.
In the 1,987 total pages oftranscripts78 from the thirteen (13) evidentiary hearings in which
Appellant proceeded pro se, a very small portion of the testimony can be attributed to the
Commonwealth's cross-examination, as the Commonwealth's evidence consisted solely of the
cross-examination of witnesses as well as the admission into evidence of the following relevant
exhibits: a total and complete copy of the transcribed tapes, Detective Carroll's Memorandum of
78 An additional 953 pages of transcripts comprises the prior counseled hearings for a total of2,940 pages.
Page 78 of 112
Interception, the composite tape played at Appellant's Guilty but Mentally Ill/Sentencing Hearing,
Detective Carroll's "A" Certification with related documents, copies of the original envelopes
containing the intercept tapes, Mr. Samios' death certificate, and a document indicating that Mr.
Zellis was designated to sign criminal informations on behalf of District Attorney Gibbons.
We find that Appellant's attempted "fishing expedition" and the introduction of
uncorroborated evidence are an abuse of the PCRA process and do not indicate any "rehabilitation"
on his part.
Therefore, Appellant's fifth claim, 79 that the PCRA Hearing delays violate the Appellant's
Due Process rights prohibiting the Bucks County District Attorney's Office from alleging
prejudice based on the death of Mr. Samios to be without merit and, we find sufficient prejudice
has been established to support the dismissal of the instant PCRA Petition. We will, however,
address all claims Appellant has alleged to fully answer this appeal.
d, Ineffective Assistance of Counsel/Voluntariness of a Valid Guilty Plea
Appellant's first (P1) through fourth (4th) claims presented in his Brief in Support of his
PCRA petition encompass ineffective assistance of counsel. As such, we will briefly set forth the
applicable standard below.
Pursuant to the PCRA, in order to sustain a claim for ineffective assistance of counsel,
Appellant has the burden to prove by a preponderance of the evidence that his conviction and
judgment of sentence resulted from the "[ijneffective assistance of counsel which, in the
circumstances of [his J particular case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place." 42 P.C.S. § 9543(a)(2)(ii).
79
We have taken this claim out of turn, as its disposition is sufficient, in and of itself, to warrant our denial of
Appellant's PCRA Petition and all amended petitions filed thereafter.
Page 79 of 112
A criminal defendant has the right to effective assistance of counsel during a plea process
as well as during trial. Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa.Super. 2006) (citation
omitted). In reviewing an ineffective assistance of counsel claim, a court presumes that counsel
was effective. Commonwealth v. Fletcher, 986 A.2d 759, 772 (Pa. 2009). A defendant has the
burden to show that (I) the underlying claim is of arguable merit; (2) counsel's course of conduct
was without a reasonable basis designed to effectuate his client's interest; and (3) he was
prejudiced by counsel's ineffectiveness. Commonwealth v. Walls, 993 A.2d 289, 296 (Pa. Super.
2010).8 ° Counsel cannot be deemed ineffective for failing to raise a meritless claim.
Commonwealth v. Spatz, 896 A.2d 1191, 1122 (Pa. 2006) (citation omitted). In order to meet the
prejudice prong, a defendant must show that there is a "reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been different." Walls, 993 A.2d at
296, quoting Strickland v. Washington, 104 S.Ct. 2052, 2068 (1984). A claim of ineffectiveness
may be denied where a defendant's evidence fails to meet any of these prongs. Commonwealth v.
Rainey, 928 A.2d 215, 224 (Pa. 2007).
Furthermore, Appellant claims that trial counsel's ineffectiveness caused him to enter an
involuntary and unknowing plea. The court inCommonwealth v. Kersteter held that"[ a] defendant
is permitted to withdraw his guilty plea under the PCRA if ineffective assistance of counsel caused
the defendant to enter an involuntary plea of guilty." 877 A.2d 466, 468 (Pa. 2005). In order to
prevail on a claim alleging ineffective assistance of counsel in connection with the entry of a guilty
plea, a defendant must demonstrate that the ineffective assistance caused the defendant to enter an
involuntary or unknowing plea Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super. 2002).
80 Referred to hereinafter as the "ineffectiveness standard."
Page 80 of 112
It is important to note that all that is required in terms of a valid guilty plea is that the
Appellant's decision to enter said plea be knowingly, voluntarily and intelligently made, and "[t]he
law does not require that a Appellant be pleased with the outcome of his decision to enter a plea
of guilty." Commonwealth v. Myers, 642 A.2d I 103, 1105 (Pa.Super. 1994).
The Comments to Pa.R.Crim.P. Rule 590 provide guidelines for determining whether a
defendant acted knowingly, voluntarily, and intelligently in entering a guilty plea, as follows:
(1) Does the Appellant understand the nature of the charges to which he or she is
pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the Appellant understand that he or she has the right to trial by jury?
(4) Does the Appellant understand that he or she is presumed innocent until found
guilty?
(5) Is the Appellant aware of the permissible range of sentences and/or fines for the
offenses charged?
(6) Is the Appellant aware that the judge is not bound by the terms of any plea
agreement tendered unless the judge accepts such agreement?
Moreover, "reliance on counsel's advice as to the likely consequences of a guilty plea does
not render the plea involuntary and is not grounds for the withdrawal of a plea." Commonwealth
v. Price, 452 A.2d 840, 843 (Pa.Super. 1982). "[A] defendant is bound by the statements which
he makes during his plea colloquy." Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa.
1997). In addition, "once a defendant has entered a plea of guilty, it is presumed that he was aware
of what he was doing, and the burden of proving involuntariness is upon him." Commonwealth v.
Myers, 642 A.2d 1103, 1105 (Pa.Super. 1994) (quotations and citations omitted). The
determination as to whether or not a guilty plea was involuntary is made by an examination of the
totality of the circumstances surrounding the plea. Commonwealth v. Fluharty, 632 A.2d 312, 314-
Page 81 of 112
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15 (Pa.Super. 1993), citing Commonwealth v. Shaffer, 446 A.2d 591, 595-96 (Pa. 1982),
Commonwealth v. Klinger, 470 A.2d 540, 547 (Pa.Super. 1983).
The Superior Court of Pennsylvania succinctly set forth the following with regard to a
claim of an involuntary guilty plea:
In order for a guilty plea to be constitutionally valid, the guilty plea colloquy must
affirmatively show that the Appellant understood what the plea connoted and its
consequences. This determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Thus, even though there is an
omission or defect in the guilty plea colloquy, a plea of guilty will not be deemed
invalid if the circumstances surrounding the entry of the plea disclose that the
Appellant had a full understanding of the nature and consequences of his plea and
that he knowingly and voluntarily decided to enter the plea.
Fluharty, 632 A.2d at 314-315 (internal quotations and citations omitted).
Regarding the factual basis prerequisite to a valid guilty plea, "[i]t is clear that before
accepting a plea of guilty, the trial court must satisfy itself that there is a factual basis for the
plea ... However, 'the 'factual basis' requirement does not mean that the defendant must admit
every element of the crime."' Id. at 315 (internal citations omitted).
A careful review of both the notes of testimony from the Guilty Plea and Guilty but
Mentally Ill/Sentencing Hearing reveal that Appellant's plea was knowing, intelligent and
voluntarily made. Appellant understood that he was waiving his right to a trial, as well as the
Commonwealth's burden of proving the crimes with which he was charged beyond a reasonable
doubt. Furthermore, he understood that he was afforded the presumption of innocence and by
pleading guilty he was "giving up substantially all of [his] legal rights." In terms of cases like his,
in which there was not an agreement as to sentence, Appellant understood that Judge Biehn would
refer to the Sentencing Guidelines' recommendation. N.T. 3/28/05, pp. 3, 6.
Page 82 of 112
Judge Biehn meticulously set forth each crime that Appellant was charged with, the grading
of said crime, as well as the maximum penalty. Appellant indicated that he understood. Judge
Biehn recognized that he was aware that Appellant was on medication several days prior to the
plea, and he ensured again that Appellant understood the proceedings. N.T. 3/28/05, pp. 7-17.
In terms of the factual basis, as set forth above, Mr. Fink, Appellant and Judge Gambardella
agreed that the facts set forth in the Habeas Corpus document (Exh. C-1) were to be incorporated
as the factual basis for the plea. Again, Appellant indicated that he reviewed said stipulation and
he acknowledged it was accurate and that he committed all acts outlined therein. Appellant made
two (2) additional acknowledgments that he committed the instant offenses, and he also
acknowledged that he understood that he had the right to file a motion to withdraw his guilty plea
within ten (10) days. N.T. 3/28/05, pp. 17-21.
Appellant indicated that he had no questions regarding the guilty plea proceedings in open
court just prior to Judge Biehn's acceptance of said plea. Finally, Appellant again indicated that
he understood the guilty plea proceedings. N.T. 3/28/05, pp. 21, 23-24.
In terms of the guilty but mentally ill plea procedure, following an in-depth explanation
from Judge Biehn, Appellant indicated that he understood. N.T. 3/28/05, pp. 14-16, 19-20.
At Appellant's Guilty but Mentally Ill/Sentencing Hearing, Judge Gambardella set forth
the facts from the Habeas Corpus document on the record, which was later entered into evidence
as Exh. CE-I. N.T. 5/25/05, pp. 6-30. During this recitation, the record reveals that Appellant
understood the recitation and he never made an indication that he disagreed with the facts presented
therein.
Page 83 of 112
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Judge Biehn indicated that Appellant appeared to understand "exactly what I said and
seemed to have no question about that. He is an attorney and he seemed to follow along." N.T.
3/28/05, p. 20.
Furthermore, it is noteworthy that Appellant admitted he had occasion to practice criminal
law when he was still a barred attorney and was therefore familiar with the elements prerequisite
to a lawful guilty plea colloquy, and understood that any right he possessed prior to the entrance
of the plea was waived and that his sentence was at the discretion of the trial judge. N.T. 6/26/08,
pp. 30·3 l, 67-68, 69, 70, 89-90, 97; N.T. 11/25/08, pp. 46-48.
With this backdrop, we will address Appellant's more specific claims below.
1. Involuntaryand Unknowing Guilty Plea- Competency
Appellant first claims that his guilty plea was involuntarily and unknowingly entered as
the result of his alleged incompetence based on withdrawal symptoms from the "sudden cessation
of medication." See "Amended PCRA," 2/03/10, ,r 4(A)(a)(i).
A well-settled principle in this Commonwealth is that "a defendant is presumed to be
competent to stand trial." Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 2004).
Furthermore, "the burden is on Appellant to prove, by a preponderance of the evidence, that he
was incompetent to stand trial:" Id. 50 Pa.C.S. § 7402(a) provides that incompetency is defined
as follows: "[w]henever a person who has been charged with a crime is found to be substantially
unable to understand the nature or object of the proceedings against him or to participate and assist
in his defense."
The Superior Court of Pennsylvania set forth the relevant standard to determine a
Appellant's mental competency to enter a guilty plea as follows: "whether [a defendant] had
sufficient ability at the pertinent time to consult with counsel with a reasonable degree of rational
Page 84 of 112
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understanding, and have as a rational, as well as a factual understanding of the proceedings against
him." Commonwealth v. Scott, 414 A.2d 3 88, 390 (Pa. Super. 1979), citing Commonwealth v.
Marshall, 312 A.2d 6 (Pa. 1973); Commonwealth v. McNeill, 305 A.2d 51 (Pa. 1973).
Furthermore, in Santiago the Court noted that it was "bound by the PCRA court's credibility
determinations where there is record support for those determinations." Santiago, 855 A.2d at 694
(citing Commonwealth v. Abu-Jamal, 720 A.2d 79, 93 (Pa. 1998)).
Appellant advanced no evidence, besides his own self-serving and uncorroborated
statements, that he was not competent to proceed or that he did not understand the guilty plea
proceedings because of his mental illnesses in conjunction with the fact that he remained
unmedicated for days leading up to the entrance of the guilty plea.81 Throughout his testimony
and brief, he seemed to confuse his diagnosis of mental illness with competency, which are two
(2) separate and distinct constructs. Furthermore, as early as the PCRA evidentiary hearing on
June 13, 2011, we indicated our finding that Appellant was not credible. N.T. 6/13/11, p. 162.
This finding did not waver and remained unchanged throughout the following nine (9) additional -
evidentiary hearings.
Dr. Cohen, a mental health expert, had occasion to evaluate Appellant at the time of his
guilty plea and Guilty but Mentally Ill/Sentencing Hearings. Although Dr. Cohen was of the
opinion that Appellant should remain medicated in order to maintain stability, he did not find that
he was incompetent to stand trial at this time. Furthermore, Dr. Cohen testified at Appellant's
Guilty but Mentally Ill/Sentencing Hearing that as of the last time he saw him, on March 17, 2005,
just a week prior to the guilty plea, he was competent. N_T. 11/19/10, p. 86; N.T. 5/25/05, p. 85.
81As set forth above, the District Attorney stipulated that if called to testify, Ms. Dunn, the records custodian of the
BCCF, would state that the prison records established that there were no medications noted on Appellant's log,
indicating it was not prescribed and thus not given. See N.T. 6/13/11, pp. 176~79.
Page 85 of 112
Moreover, Dr. Cohen's report, entered into evidence at both the Guilty Plea and Guilty but
Mentally Ill/Sentencing Hearing, described Appellant as "well oriented in all spheres" and his
"Attention/Concentration is characterized by an ability to attend and maintain focus." While Dr.
Cohen indicated that if Appellant stopped taking prescribed medications there could have been a
re-emergence of symptoms (see N.T. 11/19/10, p. 81 (emphasis added)), the testimony of other
witnesses indicates that no such re-emergence occurred in the instant case.
Additionally, Dr. Strochak testified at Appellant's Guilty but Mentally Ill/Sentencing
Hearing that Appellant was competent to stand trial and he never found him to be incompetent at
any point. N.T. 5/25/05, p. 71.
We now turn to the examining testimony of the attorneys who represented Appellant at the
guilty plea and sentencing proceedings, both of whom we found credible. Mr. Fink testified that
both doctors who examined Appellant, Dr. Cohen and Dr. Strochak, determined that he was
competent to stand trial. N.T. 11/24/08, pp. 162-63. Although he was aware that Appellant had
not been taking his medication following incarceration at the BCCF, and despite his diligent efforts
to forward over Dr. Cohen's letter imploring the disposition of said medication, Fink testified that
this was brought to Judge Biehn's attention. N.T. 11/19/10, p. 154. Furthermore, based on his
interactions, observations and conversations with Appellant on the day of his guilty plea and during
plea proceedings, Fink did not see any indication that Appellant was incompetent, nor did
Appellant exhibit an inability to understand the proceedings. N.T. 919/11, pp. 68-70, 72.
Similarly, Mr. Tauber testified that he was present at Appellant's guilty plea hearing, met with him
in his holding cell prior to that hearing, and did not see any reason to believe that Appellant did
not understand the proceedings. N.T. 6/13/11, p. 143. Therefore, this testimony in and of itself
Page 86 of 112
establishes that Appellant was able to consult with counsel with a reasonable degree of rational
understanding.
Most importantly, Judge Biehn went to great lengths to ensure that Appellant understood
the proceedings, as Judge Biehn was aware of Appellant's lack of medication. Judge Biehn was
satisfied with Appellant's indications that he understood the charges against him, the maximum
penalties said charges bring, the guilty but mentally ill procedure, the fact that Judge Biehn had
discretion in fashioning sentence based on the recommendation of the Sentencing Guidelines, the
fact that he was giving up numerous rights afforded by criminal defendants by entering the guilty
plea, the fact that his bases for appeal would be limited following entrance of the plea, and his
ability to file a motion to withdraw the guilty plea within ten (10) days, as reflected by the record.
Furthermore, Judge Gambardella, who was also present at Appellant's guilty plea hearing
and who we find credible, indicated that at the guilty plea hearing Appellant appeared to be
competent, oriented and he answered questions appropriately. N.T. 9/19/11, pp. 155-56, 164.
Moreover, Judge Gambardella recalled that it was his belief that Appellant was feigning mental
illness as demonstrated by his change of behavior when Judge Biehn was on the bench versus his
"lively" behavior once the Judge left the bench. See N.T. 9/19/11, p. 164.
Finally, our own review of the record indicates that Appellant provided responsive,
complete and articulate answers at the guilty plea proceedings. There was no evidence to indicate
Appellant was anything less than clear of mind.
Therefore, because Appellant failed to present any evidence of his incompetence at the
guilty plea proceedings, and the evidence submitted at the evidentiary PCRA proceedings and the
guilty plea proceedings indicates the opposite, Appellant failed to meet the first prong of the
Page 87 of 112
ineffectiveness standard, i.e. that the underlying claim has arguable merit. Thus, trial counsel
cannot be deemed ineffective for failing to raise a meritless claim.82
ii. Involuntary and Unknowing Guilty Plea- No Written Colloquy, Not
Present for General Colloquy, No Factual Basis, Instructions of Law
Incorrect and/or Confusing, Affirmative Defenses83
a. No Written Colloquy
We will first address Appellant's contention that trial counsel was ineffective for causing
Appellant to enter into an involuntary and unknowing guilty plea as the result of the fact that no
written colloquy was provided. At the time of Appellant's guilty plea, it was not the practice of
this Court to provide criminal defendants with written plea colloquies. Nor is the existence of a
written guilty plea colloquy a requirement or prerequisite to establish a knowing, voluntary and
intelligent plea. Therefore, because Appellant cannot meet the first prong with regard to the
ineffectiveness standard, i.e., his underlying claim is of arguable merit, and he has failed to present
authorities to the contrary, we believe this claim should be dismissed.
Next, Appellant makes the bald claim that he was not present for the general guilty plea
colloquy. Appellant did not plead this claim in his Amended PCRA Petition, nor was it pled in
any prior petition, and thus, it is waived and should be dismissed. See Pa.R.C.P. 902(A)(12)(a) &
82
In his Brief, Appellant raises this same ineffective claim regarding failing to raise the issue of competency on the
part of Attorney Tauber as well. Although Tauber did not enter his appearance on Appellant's behalf and this claim
was not raised in Appellant's Amended PCRA Petition, thus rendering it waived, in the interest of justice we find that
the argument pertaining to Attorney Fink on this same subject is applicable by extension. Thus, Tauber cannot be
found to be ineffective on the basis of Appellant's meritless claim that he was incompetent prior to his entrance of the
guilty plea.
83
Appellant raises the following claims in hi; brief relative to Tauber, although these claims were not specifically
raised in his amended petition, with the exception of the contention that Tauber was ineffective in failing to withdraw
Appellant's plea as a result of a generally "defective plea colloquy apparent on the face of the record." See "Amended
PCRA," 2/03/10, 'If 6(B) As such, these claims are waived. See Pa.R.C.P. 902(A)(I l), (12)(a) & (b). Regardless, the
analysis set forth in depth below regarding Fink is applied to Tauber by extension. Accordingly, based on the foregoing
analysis we find that Tauber rightfully determined that no basis existed to withdraw Appellant's guilty plea or raise
an appellate issue based on a defective plea colloquy. See N.T.6/13111, pp. 144-146.
Page 88 of 112
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(b); Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998) (holding claims not raised in an initial
pro se and subsequent counseled Amended PCRA Petition are deemed waived and cannot be
raised on an appeal from the denial of said PCRA Petitions).
In the interest of justice and judicial economy, and despite the fact that this claim is
waived, the Notes of Testimony from the guilty plea hearing reflect that Appellant was physically
present during the colloquy. See N.T. 3/28/05, pp. 2-7. Furthermore, Appellant failed to submit
any evidence to the contrary, nor did he testify to same. His physical presence is further
corroborated by Judge Gambardella, who was able to describe him as being competent, oriented
and able to answer questions appropriately.84 N.T. 9/19/11, pp. 155-56, 164. Finally, Appellant
failed to show any prejudice, as his PCRA testimony establishes that he was familiar with the
constitutional rights he possessed that he was giving up by entering into a guilty plea. See N.T.
6/26/08, pp. 30-31, 67-68, 70, 89-90, 97; N.T. 11/25/08, pp. 46-48.
b. No Factual Basis
Next, we will address Appellant's contention that Mr. Fink's ineffectiveness rendered
Appellant's guilty plea unknowing and involuntary as the result of his failure to challenge the
alleged lack of a factual basis to support the· guilty plea, as set forth in his brief. In Appellant's
Amended Petition, however, he does not claim that the factual basis was nonexistent and, instead,
he claims that he was not consulted regarding the factual basis and avers that it contained "false
and misleading information designed to wrongfully inculpate" him. See "Amended PCRA,"
2/03/10, 1f 6(A)(e)(i)-(iv).
84Had Appellant raised this issue previously, testimony regarding his presence during the guilty plea colloquy could
have been established.
Page 89 of 112
..-....: ..
Because nowhere in the pleadings does Appellant raise the issue that the facts contained in
"Court's Exhibit I" and read into the record at his Guilty but Mentally Ill/Sentencing Hearing
would not form a factual basis establishing each and every element of every crime charged, we
will not address this more specific contention.
As previously discussed at length, Appellant's plea was subject to stipulated facts
incorporated into the record at Appellant's Guilty Plea Hearing and later entered into evidence at
the Guilty but Mentally Ill/Sentencing Hearing as Exhibit CE-1. At his guilty plea hearing,
Appellant indicated that he reviewed the document and made numerous acknowledgments that he
did in fact commit the crimes for which he was charged and convicted. N.T. 3/28/05, pp. 17-10,
21. On May 25, 2005, when Appellant's guilty but mentally ill plea was accepted by the Court
following the testimony of two (2) psychiatrists, the District Attorney read said Habeas Corpus
document into the record. N.T. 5/25/05, 6-30. The record is devoid of any attempts by Appellant
to object to the contents contained therein.
Appellant testified that there existed no factual basis for his plea contained on the record
because the District Attorney did not read the affidavit of probable cause or other documents into
the record. However, the Notes of Testimony indicate that this was the result of a stipulation
between the parties, which Appellant indicated he understood. See N.T. 3/28/05, pp. 17-18.
Additionally, the facts were read into the record at the Guilty but Mentally Ill/Sentencing Hearing,
during which Appellant's Guilty but Mentally Ill plea on Solicitation to Commit Murder was
accepted by the Court following testimony from two (2) mental health experts. Appellant was only
sentenced on the Solicitation to Commit Murder count.
We find Appellant's testimony that he never reviewed Exhibit CE-I prior to it being read
into the record disingenuous and not worthy of belief. See N. T. 3/28/05, p. 18. The record reflects
Page 90 of 112
that Appellant reviewed the Affidavit of Probable Cause attached to the Criminal Complaint
( which forms the basis for the Habeas Document, in addition to the content of the transcribed
tapes); that he listened to relevant portions of the interceptions at the District Attorney's Office
with both Fink and Judge Gambardella present, that Fink provided him with a copy of the tapes
prior to the Guilty Plea, and that he listened to those tapes prior to the plea. N.T. 11/24/08, p. 19;
N.T. 11/25/08, p. 64; 5/25/05, pp. 90-91. Fink corroborated that portions of the transcribed tapes
were played for Appellant at a meeting in the District Attorney's Office. N.T. 11/24/08, pp. 142,
151-53; N.T. 9119/11, pp. 83-84; N.T. 2/08/11, p. 131.
Furthermore, we find Fink's testimony credible in that he assured this Court that he
discussed the possibility of a guilty plea at length with both Appellant and Attorney Tauber, that
Appellant understood the decision to enter the plea, the reasons supporting Fink's recommendation
he enter into a plea, and what the facts of the case were. N.T. 11/24/08, pp. 126-28, 173-74; N.T.
9/19/11, pp. 57, 63-65, 67, 72.
Therefore, because trial counsel cannot be deemed ineffective for failing to raise a meritless
claim, and because Appellant has not established any evidence aside from his uncorroborated and
self-serving statements85 that he brought any disagreement with the facts contained in Exhibit CE-
1 to counsel's attention, he cannot succeed on this claim.
c. Incorrect/Confusing Instructionsof Law
Appellant attempts to claim that Judge Biehn's guilty plea colloquy did not adequately set
forth the elements of Burglary, Kidnapping, and Attempted Murder and incorrectly identified False
85 Although Fink recalled that Appellant disagreed with alleged misstatements of fact made by Samios and Fryling as
related to the probable cause affidavits, he was of the opinion that even with these facts being excised there still existed
sufficient evidence. See N.T. 9/19/11, pp. 63-65.
Page 91 of 112
-- ..-.......
Imprisonment and Unlawful Restraint as a lesser included offense of Kidnapping. Our review of
the Guilty Plea colloquy and relevant caselaw indicates that this claim is without merit.
Regarding Burglary, Appellant claims that the charge omitted the exception of "unless
licensed or privileged to enter." See "Brief for Appellant," 9/04/14, p. 22. The record reflects that
Judge Biehn explained that Burglary was "the entry of a building with the intention of committing
a crime." N.T. 3/38/05, pp. 16-17. Caselaw dictates that the elements of burglary or attempted
burglary are as follows: " .. .intent to commit a felony or any qualified crime within
the burglarized premises." Commonwealth v. Wilamowski, 633 A.2d 141 (Pa. 1993) (citing
Commonwealth v. Graves, 334 A.2d 661 (1975), Commonwealth v. Stanley, 309 A.2d 408(1973)). Further, 18 Pa.C.S. 3502(a) provides that individuals cannot be convicted of Burglary
where they are "licensed and privileged" to enter the premises. See Commonwealth v. Sanchez,
82 A.3d 943, 973 (Pa. 2013). However, "(a]ny license or privilege to enter a premises is negated
when it is acquired by deception." Id. Furthermore, "legal ownership is not synonymous with
license or privilege" to enter for purposes of Burglary. Commonwealth v. Majeed, 694 A.2d 336,
338 (Pa. 1997). Finally, the Superior Court of Pennsylvania in Commonwealth v. Corbin, 446
A.2d 308, 311 (Pa. Super. 1982), held that a person who is privileged to enter a premises may still
be found guilty of Burglary if he/she was not reasonably expected to be present. Thus, Appellant
cannot show prejudice.
In terms of the Kidnapping charge, Appellant claims that Judge Biehn failed to state the
element of "unlawfully moving another a substantial distance." We find this claim to be of no
merit. Judge Biehn explained at the guilty plea hearing that Criminal Attempt to Commit
Kidnapping entailed the following elements: "to take someone and move them to another spot with
the intention of committing some crime upon them." N.T. 3/28/05, p. 13. Therefore, although not
Page 92 of 112
in the exact language of the Kidnapping statute, 18 Pa.C.S. § 2701(a)(2)&(3), we find Judge
Biehn's colloquy adequately informed Appellant of the elements, and that Appellant, as a former
attorney who previously had the opportunity to practice criminal law, indicated he understood. See
N.T. 3/28/05, p. 13. Thus, Appellant is unable to show prejudice and Attorney Fink cannot be
found ineffective for failing to raise this meritless claim.
Appellant next challenges Judge Biehn's description of Attempted Murder, which was as
follows:
A First Degree Murder is basically a killing which is committed by malice. There
has to be premeditation and there has to be a specific intention to take human life.
That's what is required to be proved in order to prove a First Degree Murder. It has
to be a malicious killing with the specific intention to take life.
See N.T. 3/28/05, p. 11. In conjunction with this, Judge Biehn explained that Appellant was
entering a guilty plea to Criminal Attempt to Commit Attempted Murder, and that the elements of
Criminal Attempt are as follows: "you intended to took a substantial step towards the commission
of these crimes ... These crimes didn't bear fruition, they weren't culminated, but you attempted to
do it and you had the intention of doing it at that time." See N.T. 3/28/05, p. 11. Our review of
the elements of First Degree Murder, 18 Pa.C.S. § 2702(a), and Criminal Attempt, 18 Pa.C.S. §
901(a), demonstrates that Judge Biehn's explanation of both offenses was accurate and did not
contain any material deviations from the requisite statutes.
Finally, in terms of Kidnapping, False Imprisomnent and Unlawful Restraint, we find no
fault in Judge Biehn's description of False Imprisonment and Unlawful restraint as offenses of a
lesser degree than that of Kidnapping. See N.T. 3/28/05, p. 14; In re T.G., 836 A.2d 1003, 1009
(Pa.Super. 2003) (holding that false imprisonment is of a lesser magnitude than kidnapping);
Commonwealth v. Ackerman, 361 A.2d 746, 748-749 (Pa.Super. 1976) (holding that the only
difference in the elements of Kidnapping and Unlawful Restraint is that Unlawful Restraint
Page 93 of 112
includes the element of risk of serious bodily injury, whereas Kidnapping only encompasses the
intent to commit bodily injury). Nevertheless, Appellant admitted that he understood the reason
Judge Biehn did not set forth in detail the elements of False Imprisonment and Unlawful Restraint.
See N.T. 3/28/05, p. 14. Ultimately, because Appellant was not sentenced on these offenses
separately, pursuant to 18 Pa.C.S. 906, Appellant cannot show prejudice, nor can he show that
Fink was ineffective for failing to raise this as a basis to establish a defective plea colloquy.
We note that Appellant's brief cites no authority to support these claims.
d. Affirmative Defenses
Throughout this section of Appellant's Brief (pages 23-24), Appellant continually
mischaracterizes the evidence that was presented throughout the PCRA evidentiary hearings, and
twists uncorroborated and self-serving facts in order to prove that an affirmative defense existed
in this case.
We agree with Appellant that an individual cannot enter into an intelligent guilty plea
where he is unaware of an applicable affirmative defense. See Commonwealth v. Fluharty, 632
A.2d 312, 315 (Pa.Super. 1993). However, Appellant failed to disclose that this proposition rests
on the fact that "a guilty plea should not be accepted if the Appellant asserts facts that might
constitute a defense ... " Id. The record reflects that Appellant made no such statement at the guilty
plea proceedings. Furthermore, a review of Exhibit CE-1 does not indicate, either directly or
indirectly, any potential defense to the crimes charged.
Additionally, Fink testified that he diligently investigated any potential affirmative
defenses, including entrapment and drug usage during the intercepted conversations (N. T. 9/19/1 1,
p. 60; N.T. 11/24/08, pp. 95-97), Samios' lack of consent to the interceptions (N.T. 9/19/11, pp.
66, 77); and insanity (N.T. 11/24/08, pp. 162, 164-65; N.T. 8/26/10, pp. 82-85, 86-87, 74-75; N.T.
Page 94 of 112
-..,_ --.
9/19/11, pp. 27, 58). Ultimately, with regard to all of the above defenses, we found Attorney
Fink's statements credible regarding both his investigation as well as his ultimate opinion that
none would be meritorious.
iii. Involuntary and Unknowing Guilty Plea- Failure to Litigate Suppression
Motion116
The crux of Appellant's claims set forth in his "Amended PCRA" revolve around alleged
Wiretap Act violations. See "Amended PCRA," 2/03/10, 1 5(A)(a)-(h); "Brief for Appellant,"
9/04/14, pp. 37-48.
The Wiretapping and Electronic Surveillance Act ("the Wiretap Act"), 18 Pa.C.S. § 5701
et seq., provides in relevant part as follows:
(2) Any investigative or law enforcement officer or any person acting at the
direction or request of an investigative or law enforcement officer to intercept a
wire, electronic or oral communication involving suspected criminal activities,
including, but not limited to, the crimes enumerated in section 5708 (relating to
order authorizing interception of wire, electronic or oral communications), where:
(ii) one of the parties to the communication has given prior consent to such
interception. However, no interception under this paragraph shall be made
unless the Attorney General or a deputy attorney general designated in
writing by the Attorney General, or the district attorney, or an assistant
district attorney designated in writing by the district attorney, of the county
wherein the interception is to be initiated, has reviewed the facts and is
satisfied that the consent is voluntary and has given prior approval for the
interception; however, such interception shall be subject to the recording
and record keeping requirements of section 5714(a) (relating to recording
of intercepted communications) and that the Attorney General, deputy
attorney general, district attorney or assistant district attorney authorizing
86
Appellant raises the following claims in his brief relative to Attorney Tauber, although Tauber did not enter.his
appearance in this case and these claims were not specifically raised against Tauber in his amended petition. As such,
these claims are waived. See Pa.R.C.P. 902(A)(l 1), (12)(a) & (b). Regardless, the analysis set forth in depth below
regarding Attorney Fink is applied to Tauber by extension and, because each and every claim regarding an alleged
Wiretap Act violation is without merit, Tauber cannot be deemed ineffective for failing to raise it, to the extent he was
legally responsible as he was not Appellant's counsel ofrecord during the trial phase.
Page 95 of112
-r-,
--
the intetception shall be the custodian of recorded evidence obtained
therefrom;
(iv) the requirements of this subparagraph are met. If an oral interception
otherwise authorized under this paragraph will take place in the home of a
nonconsenting party, then, in addition to the requirements of subparagraph
(ii), the interception shall not be conducted until an order is first obtained
from the president judge, or his designee who shall also be a judge, of a
court of common pleas, authorizing such in-home interception, based upon
an affidavit by an investigative or law enforcement officer that establishes
probable cause for the issuance of such an order. No such order or affidavit
shall be required where probable cause and exigent circumstances exist. For
the purposes of this paragraph, an oral interception shall be deemed to take
place in the home of a nonconsenting party only if both the consenting and
nonconsenting parties are physically present in the home at the time of the
interception.
18 Pa.C.S. 5704(2)(ii) & (iv).
Therefore, pursuant to the dictates of the statute, the only requirements for a one-party
consensual interception are as follows: the law enforcement officer suspects criminal activity
relating to an offense set forth in Section 5708 ("Order authorizing interception of wire, electronic
or oral communications"), 87 one of the parties to the communication has given consent to the
interception of wire, electronic or oral communications; the district attorney ( or a designated
assistant district attorney) reviewed the facts and is satisfied that the party had given consent; and
that the district attorney (or her designee) has given approval for the interception and acts pursuant
to his record-keeping responsibilities set forth in Section 5714(a) and as evidence custodian. See
18 Pa.C.S. § 5704(2)(ii).
87 These enumerated offenses include Murder, Aggravated Assault, Kidnapping, Burglary, and Theft by Deception,
all of which Appellant initially was suspected and later charged with (except Theft by Deception).
Page 96 of 112
. .-... ...
Moreover, for oral interceptions which occur in a non-consenting party's home, in addition
to the requirements set forth pertaining to Section 5704(2)(ii), an Order must first be obtained from
the President Judge or his designee based upon an affidavit of probable cause prepared by a law
enforcement officer. See 18 Pa.C.S. § 5704(2)(iv).
In terms of the probable cause requirement necessary to obtain court approval for one-party
consensual interceptions, the Superior Court of Pennsylvania has defined the standard for
determining whether probable cause exists as that used to determine probable cause for the
issuance of search warrants, set forth below:
The facts contained in the affidavit for a search warrant must be such that an
independent, issuing authority, exercising reasonable caution, can conclude that the
items sought are connected with criminal activity and that they will be found in the
place to be searched. Similarly, in an application for a wiretap, the Commonwealth
must establish probable cause to believe that (1) a person has or is about to commit
ope of the offenses enumerated in the statute, (2) that communications relating to
that offense will be transmitted, and (3) that such communications will be
intercepted on the facility under surveillance.
Commonwealth v. Doty, 498 A.2d 870, 882 (Pa.Super. 1985) (internal citations omitted).
Pursuant to 18 Pa.C.S. § 5714(a), a further requirement regarding one-party consensual
interceptions is that the law enforcement officer must be certified under the act pursuant to Section
572488 and should maintain a written record regarding the dates and hours of surveillance, the time
and duration of each intercepted communication, the participant(s) in each intercepted
conversations and a summary of the content of each intercepted conversations, "where
practicable." 18 Pa.C.S. § 5714(a).
88
The Wiretap Act charges the Attorney General and the Commissioner of the Pennsylvania State Police with the
responsibility of establishing "a course of training in the legal and technical aspects of wiretapping and electronic
surveillance." 18 Pa.C.S. § 5724.
Page 97 of 112
,,...,.._ __
As set forth above, after review of the testimony and relevant evidence (including
specifically the wiretap documents contained within 253-2004 and 254-2004), we are satisfied that
the oral telephone and in-person conversations were intercepted in accordance with the guidelines
and requirements set forth in 18. Pa.C.S. § 5704(2)(ii) & (iv). Detective Carroll, as the criminal
investigator, was investigating Appellant based on information from two (2) named informants
that Appellant was involved in an insurance fraud and theft by deception scheme. Prior consent
to intercept and monitor the telephone calls was obtained from Samios, who was consistently one
of the parties involved in the communication. Approval for the interception of the telephone calls
that captured the communications at issue here was obtained from Judge Gambardella, who at that
relevant time was a Deputy District Attorney designated with the authority to approve and monitor
said interceptions. Finally, for the in-home communications, Judge Gambardella petitioned, and
Judge Biehn approved his request, for the interception of those communications following a review
of Detective Carroll's affidavit of probable cause and a finding that the requisite level of probable
cause was established therein.
We found that Detective Carroll possessed the requisite qualifications and training as set
forth by the Pennsylvania State Police, as he received his "A" Certification in 1994 and has not
experienced a lapse in his status as a law enforcement officer. N.T. 11/24/08, p. 182; N.T.
10/11/13, pp. 48-51, 54-55; See Exhibit C-PCRA-6.
The grounds upon which an individual subject to one-party non-consensual interceptions
can move to exclude those communications are enumerated in 18 Pa.C.S. § 5721.1, provides in
pertinent part as follows:
(b) Motion to exclude.--Any aggrieved person who is a party to any proceeding in
any court, board or agency of this Commonwealth may move to exclude the
contents of any wire, electronic or oral communication, or evidence derived
therefrom, on any of the following grounds:
Page 98 of 112
(1) Unless intercepted pursuant to an exception set forth in section 5704
(relating to exceptions to prohibition of interception and disclosure of
communications), the interception was made without prior procurement of
an order of authorization under section 5712 (relating to issuance of order
and effect) or an order of approval under section 5713(a) (relating to
emergency situations) or 5713.l(b) (relating to emergency hostage and
barricade situations).
(2) The order of authorization issued under section 5712 or the order of
approval issued under section 5713(a) or 5713.l(b) was not supported by
probable cause with respect to the matters set forth in section 5710(a)(I)
and (2) (relating to grounds for entry of order).
(3) The order of authorization issued under section 5712 is materially
insufficient on its face.
(4) The interception materially deviated from the requirements of the order
of authorization.
(5) With respect to interceptions pursuant to section 5704(2), the consent to
the interception was coerced by the Commonwealth.
(6) Where required pursuant to section 5704(2)(iv), the interception was
made without prior procurement of a court order or without probable cause.
18 Pa.C.S. § 5721. l(b). Thus, the preceding provision limits the suppression of evidence for non-
constitutional violations of the Wiretap Act to those specific enumerated grounds.
Before reading Appellant's more specific claims of violations of the Wiretap Act, we note
for the record that we found both Detective Carroll and Judge Gambardella'stestimony
wholly believable and credible. (emphasis added)
a. "Section 5721.l(b)(4) OrderDeviation"
First, Appellant claims that the in-person interceptions which occurred at "4074 Durham
Road," his parent's Gardenville residence located in Plumstead Township, Bucks County,
Page 99 of 112
...............
constituted a material deviation pursuant to Section 5721. l (C)(3) from the requirements of Judge
Biehn's February 23 and February 27, 2004 Intercept Orders. Both Orders indicate that Judge
Biehn authorized in-home interceptions at Appellant's home office in Furlong, as well as "any
residence, of target, Joseph Guarrasi, his owned or commonly used places of abode, or any home
or place wherein oral conununications may occur relating to the same consenting party and
participants or anyone else acting on his behalf." Appellant's bald assertion that said language is
a violation of his constitutional rights is of no merit and Appellant failed to provide any authority
supporting his position. Further, Appellant does not deny that the oral communications intercepted
from his parents' Gardenville residence (reflected on Tapes 6 and 10) reflect conversations
between Appellant (the target) and Samios (the consenting party), nor does he dispute that this
property is situated in Bucks County. Therefore, Fink cannot be deemed ineffective for failing to
raise this meritless claim.
Second, Appellant claims a material deviation exists from Judge Biehn's February 23 and
Judge Heckler's February 27, 2004 Intercept Orders because, according to him, he was in
Baltimore, Maryland when some of the calls were intercepted by Detective Carroll. It is
uncontradicted that all interceptions in the instant case were conducted, monitored and intercepted
in Bucks County. N.T. 8/12/13, pp. 55-56; N.T. 10/10/13, pp. 119, 153; N.T. 10/l l/l3, p. 64; See
-
C-PCRA-5. Furthermore, although Carroll testified that "there may have been times when"
Appellant was in Baltimore while interceptions were made, it was clear that during those times
Samios (the consenting party) was situated in Bucks County. N.T. 5/03/13, pp. 96-96; N.T.
8/12/13, p. 57. Both parties agree that neither Judge Gambardella nor Detective Carroll sought to
submit an application or obtain an order for interceptions in the state of Maryland. N.T. 5/03/13,
pp. 98-99; N.T. 8/12/13, p. 147. Appellant again fails to present authority to support this claim,
Page 100 of112
and he does not dispute that all recordings were monitored and intercepted in Bucks County. 89
Furthermore, with regard to the authority of the District Attorney ( or designee) to authorize an
interception, pursuant to the dictates of the Wiretap Act, the clear language of Section 5704(2)(ii)
indicates that said District Attorney/designee must be of the county "wherein the interception is to
be initiated." 18 Pa.C.S. § 5704(2)(ii) (emphasis added). Hence, because the designee of the
Bucks County District Attorney approved the one-party consensual interceptions in the instant
case and all interceptions were conducted and recorded in Bucks County, Appellant's claim is
without merit and it follows that, as a result, Fink cannot be deemed ineffective for failing to raise
and/or litigate it.
Third, Appellant claims that the District Attorney's Office disclosed the content of
interceptions in a press conference in violation of the Wiretap Act (18 Pa.C.S.A. § 5717 & §
5704(2)(iv)). This issue was not raised in his Amended PCRA Petition or any other petition. It is,
therefore, waived. See Pa.R.C.P. 902(A)(l l), (12)(a) & (b). Regardless, Appellant's reliance on
Karoly v. Mancuso, 65 A.3d 301 (Pa. 2013), and his own self-serving and uncorroborated
statements are misplaced. Karoly was a civil case on appeal from the granting of a defense motion
for summary judgment involving private non-consensual communications between an attorney and
his client who was, at the relevant time, incarcerated and calling from a county correctional facility.
Id. at 303, 309-313. Appellant does not point to anything substantial in the record, besides the fact
that Fink was aware of the publicity and a newspaper article regarding Appellant's case, 90 which
would indicate that a specific violation of the Wiretap Act occurred regarding any alleged unlawful
89 In Appellant's Amended Petition, he advances the same argument with regard to his alleged presence in
Montgomery County. See "Amended PCRA," 2/03/10, 1 5(a)(f). Although Appellant does not now advance this
claim in his brief, we apply our reasoning regarding the lack of merit by extension.
90
N.T. 11/24/08,pp. 92-93. See N.T. 2/07/11, p. 8.
Page 101 of 112
disclosures to the press. Moreover, the newspaper article to which Appellant refers was, according
to him, published on March 3, 2004, which occurred after the filing of the criminal complaint. The
criminal complaint was dated and filed on March 2, 2004, and is, by its very nature, a public record.
Accordingly, Fink cannot be deemed ineffective for failing to raise this meritless claim.
Appellant's fourthclaim relates to the context of Samios' consent. Appellant claims that
Samios was coerced by the Commonwealth to consent by the promise of a deed to the 703 North
Street property, in violation of Section 5721.1 (b )(5), and therefore his consent was involuntary
and Fink was ineffective for failing to litigate this claim.
Appellant's analysis is solely supported by mischaracterized evidence and testimony as
well as facts not in evidence. Throughout Appellant's examination of witnesses, particularly
Detective Carroll, he continually attempted to elicit collateral information regarding the 703 North
Street property, which was the subject of the suspected theft by deception offense that launched
the investigation into the instant case and ultimately led to investigators' awareness of the
solicitation to commit murder plot relative to a different property.91 Appellant was never charged
or convicted for the alleged theft by deception regarding the 703 North Street property. Appellant
claims that the District Attorney and County detectives aided Samios and Fryling in "regaining"
this property. He fails, however, to cite or present any evidence to support his contention that any
promises or threats were made regarding this property to force Samios to consent. Appellant's
contention is speculative, frivolous and the result of his unwillingness to accept, as reflected by
his incessant examination of witnesses about the residence in a failed attempt to glean information
establishing and supporting a PCRA claim, that the events regarding the North Street property are
collateral and wholly separate and distinct from the crimes for which he was convicted.
91See N.T. 8/17/12, pp. 96-98, 102, 108-1l; N.T. 8/12/l3, p. 167; N.T. 10/10/13, pp. 130-31, 133-35, 142, 156-57,
162-64; N.T. 10/11/13, p. 58; N.T. 6/30/14, pp. 64, 67.
Page 102 of 112
~.,
In fact, the record indicates that Samios' consent was knowing and voluntary. Judge
Gambardella testified that at the time that Samios signed the Memorandum of Consent, which was
contained in 254-2004, he was alert, oriented and there was no indication that he was under the
influence. Judge Gambardella indicated that no promises or tlueats were made to force Samios to
consent. N.T. 9/19/11, pp. 124-126. In terms of the second consent regarding 253-2004, Judge
Gambardella testified that no threats or promises were made in order to force Samios to consent.
N.T. 9/19/11, p. 141. Furthermore, Detective Carroll corroborated that he had no knowledge of
any promises or offers made to Samios to secure his cooperation and/or consent. N.T. 10/10/13, p.
130; N.T. 10/11/13, pp. 58, 59, 93. Detective Carroll also noted that Samios participated in the
investigation without hesitation following the issuance of Judge Biehn and Judge Heckler's Orders
authorizing the non-consensual telephone and in-person interceptions. N.T. 10/11/13, pp. 59, 93.
In terms of the argument that Samios did not give proper consent for the monitoring and
recording of the intercepted conversations, Fink explained that in his interview of Samios on the
date the preliminary hearing was waived, Samios was "eager to assist the Commonwealth and
eager to help prosecute Mr. Guarrasi." N.T. 9/19/11, pp. 66, 77. Additionally, Fink indicated that
he, Tauber and other attorneys from Tauber's firm reviewed the relevant statute and caselaw and
determined that any attack which could be launched on the one-party consensual intercepts would
prove unsuccessful. See N.T. 11/24/08, pp. 122-23, 173; N.T. 2/07/11, pp. 12-17, 148-53; N.T.
2/07/11, pp. 112-13; N.T. 9/19/11, pp. 60-61. Accordingly, because Appellant is unable to
establish that the Commonwealth coerced Samios' consent, Fink cannot be found ineffective for
failing to litigate said claim.
Appellant's fifth claim regarding alleged Wiretap Act violations is that Detective Carroll
was not in compliance with Section 5704(2)(iv) because he did not draft the Memorandum of
Page 103 of 112
Interception contemporaneously with the monitoring and recording of intercepted telephone and
in-person conversations. We find his contention is of no moment, because although Detective
Carroll did not draft the Memorandum of Interception admittedly until 2010, this in and of itself
does not establish any of the enumerated statutory grounds necessitating exclusion of the contents
of the intercepted conversations. See 18 Pa.C.S. § 5721. l(b)(l)-(6). Furthermore, Section 5714(a)
(indicating a written record should be kept of interceptions) contains the proviso "where
applicable," and the significant contents of the intercepted conversations were properly set forth
by Carroll in the Affidavit of Probable Cause. The Memorandum of Interception that Carroll
prepared, describing the date and hours of investigation, the dates, times, duration, and location of
each intercepted conversation, the identifies of the target (Appellant) and the consenting party
(Samios), as well as a summary of the content of each intercepted conversation, is now part of the
record. Again, this claim does not constitute a recognized violation of the Wiretap Act warranting
exclusion and, accordingly, Fink was not ineffective for failing to raise or litigate said claim on a
suppression motion.
Appellant's sixth claim is that some of the issues pertaining to the intercepted recordings
that were identified and rectified by Detective Carroll amount to a violation of Section 5714(a),
which requires that "[t]he recording shall be done in such a way as will protect it from editing or
other alteration." 18 Pa.C.S. § 5714(a).
It is well-established in Pennsylvania that
... the Commonwealth need not establish the sanctity of its exhibits beyond all
moral certainty; all that is required is a reasonable inference that the identity and
condition of the exhibits remain unimpaired until surrendered to the court.
Commonwealth v. Judge, 648 A.2d 1222, 1224-25 (Pa.Super. 1994) (internal citations omitted).
Page 104 of 112
In the interest of justice and judicial economy, we believe that Detective Carroll honestly
and truthfully set forth all technical issues as well as his own inadvertent mistakes in taping over
some of the content and misstating the date of an interception in his preamble.92 We accept, without
reservation, his explanations as to what caused each and every inadvertent issue and mistake, and
we find that those issues arose in the absence of malice or intent on the part of the Commonwealth
and its investigating officers.
In terms of Appellant's contention that the intercepted tapes lacked a proper chain of
custody, we determined that the chain of custody was properly established. Detective Carroll
testified that he maintained physical custody of the original analog and digital tapes until they were
turned over to Chief McAteer for storage. N.T. 11/24/08, p. 186; N.T. 9/19/11, p. 181; N.T.
8/17/12, pp. 50-51, 55; N.T. 10/11/13, p. 65. Chief McAteer testified that he was the evidence
custodian for all of the evidence submitted regarding the instant investigation. N.T. 5/03/13, p. 9.
He recalled that he placed the tapes he received from Detective Carroll in the temporary evidence
locker in the Bucks County District Attorney's Office, and he was the only person who had a key
to that evidence locker. He testified that he turned them over to Detective Carroll who transported
them to Mr. Herbert Joe, who was going to review the tapes on behalf of Appellant.93 Following
review, Detective Carroll turned them over for permanent storage at the Bucks County evidence
warehouse, located at the Thiokol warehouse. N.T. 5/03/13, pp. 45-46.
Detective Carroll corroborated that Chief McAteer maintained custody of the tapes in the
evidence locker located in the detective's section of the District Attorney's Office until Chief
McAteer gave them back to Carroll, who then provided them to Mr. Herbert Joe to review on
92
Those issues and explanations are discussed in depth on pages 55 to 58 of this Opinion.
93
Mr. Joe never testified during the PCRA proceedings or otherwise regarding any detection of evidence tampering.
Page 105 of 112
behalf of Appellant in May of 2009. N.T. 9/19/11, p. 193; N.T. 10/11/13, pp. 65-66. Following
Mr. Joe's review of the tapes, Carroll transported them to the Thiokol warehouse where they were
placed in a temporary evidence locker. N.T. 9/19/11, pp. 193-94.
In terms of the alleged "tampering" with said tapes, the chain of custody has been
established and we accept Detective Carroll's testimony that he did not intentionally delete, alter,
make any edits to the tapes, splice different conversations together, nor did he do anything in an
attempt to purposefully prejudice Appellant. N.T. 11/24/08, pp. 185-86; N.T. 8/12/13, p. 92; N.T.
10/11/13, pp. 62-63, 69, 95-96. Furthermore, we now have been engaged with Detective Carroll
for over six (6) years, and in that time, he has proven to be an effective law enforcement officer,
always reliable, truthful and never deceitful.
Thus, based on the foregoing, any claim raised by Attorney Fink regarding a lack of the
chain of custody or evidence tampering would have been frivolous and, therefore, he cannot be
deemed ineffective.
Appellant's contention that Fink was ineffective for failing to litigate a suppression motion
with regard to his claim that Judge Gambardella did not have proper designation to approve one-
party consensual interceptions is without merit, as his written authorization from the District
Attorney on December 28, 200094 proves otherwise, and Section 5704(2)(iv) subsumes all
requirements set forth in Section 5704(2)(ii). Thus, Judge Gambardella had proper designation to
approve the interceptions.
Appellant also advances the argument that Judge Biehn was not a designee of President
Judge Heckler for purposes of the Wiretap Act, and thus, he was not authorized to issue the
February 23, 2004 Order. We find this claim frivolous and we take judicial notice that Judge
94The written authorization was attached as "Exhibit A" to Judge Gambardella 's Application for an Order Authorizing
the Consensual Interception of Oral Communications in a Home.
Page 106 of 112
~-
Biehn, as the administrative criminal judge during this relevant time, would have beenPresident
Judge Heckler's designee.
Finally, Appellant claims that the Affidavit in support of probable cause for purposes of
the Orders authorizing one-party consensual interceptions lacked sufficient probable cause. The
crux of Appellant's argument is that the affidavit contained numerous "knowing and intentional"
false statements that were misleading to the court. Further, he alleges that the Affidavit is silent
as to the "informants," i.e, Mr. Sarnios and Ms. Fryling, in terms of their reliability, veracity, and
basis of knowledge. See "Brief for Appellant," 9/04/14, pp. 42-43. Because these informants are
in fact named and their basis of knowledge established, as the Affidavit sets forth Fryling and
Samios' familiarity with Appellant, the contention regarding their reliability, veracity and basis of
knowledge is irrelevant.
In terms of the alleged knowing and intentional false statements, Detective Carroll credibly
testified that the affidavits of probable cause underlying the wire application documents did not
contain known incorrect statements of fact. See N.T. 8/17/12, p. 116. The "proof' surrounding
Appellant's contention regarding the alleged false facts is nothing more than his
mischaracterization of facts, oftentimes "facts" not of record, that followed from his attempt at
continuing to abuse the PCRA process throughout the course of the thirteen (13) evidentiary
hearings in which he proceeded pro se in an attempt to re-try the instant case, despite his
competent, knowing, intelligent and voluntary entrance of a guilty plea. We accept Detective
Carroll's testimony that he had no knowledge of any of these alleged "false facts" contained within
the respective affidavits, and we are satisfied that the affidavits contain sufficient probable cause
and that all facts contained therein are true and accurate to the best of Detective Carroll's
knowledge.
Page 107 of 112
Accordingly, as previously set forth, Fink cannot be found ineffective for failing to raise
meritless and frivolous claims, and because we can glean no determinable Wiretap Act violation,
we recommend that Appellant's claims pursuant thereto be dismissed.
iv. Involuntary and Unknowing Guilty Plea- Failure to Investigate/Factual
Basis
Appellant next raises the claim that Fink unreasonably failed to investigate his case,
indicating more specifically that he unreasonably failed to investigate the "key evidence" in his
case, i.e. the intercept tapes, that he failed to interview alleged "eyewitnesses," that he failed to
review Wiretap Act documents, that he failed to properly investigate the $2,000, and that he failed
to request or receive full discovery. Initially, we note that Appellant had possession of Fink's file
regarding his case and, thus, he was in the best position to determine exactly what discovery
documents were contained therein.
In terms of an ineffective assistance of counsel claim regarding an alleged failure to
investigate, the "reasonableness of a particular investigation depends upon evidence known to
counsel, as well as evidence that would cause a reasonable attorney to conduct a
further investigation." Commonwealth v. Miller, 987 A.2d 638, 666 (Pa. 2009).
Moreover, in Commonwealth v. Kahlil the Superior Court set forth as follows:
[t]o establish ineffectiveness for failure to call a witness, Appellant must establish
that: (1) the witness existed; (2) the witness was available; (3) counsel was informed
of the existence of the witness or counsel should otherwise have known of him; (4)
the witness was prepared to cooperate and testify for Appellant at trial; and (5) the
absence of the testimony prejudiced !--ppellant so as to deny him a fair trial.
Commonwealth v. Kahlil, 806 A.2d 415, 422 (Pa.Super. 2002) (citations omitted).
Fink cannot be deemed ineffective for failing to review the entirety of the intercept tapes,
as he reviewed the material portions thereof and employed an investigator to review the tapes as a
whole. N.T. 11/24/08, pp. 99, 101-02, 179-80; N.T. 11/19/11, p. 30. Furthermore, as previously
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noted, he reviewed the Wiretap Act and all relevant caselaw and determined, in consultation with
Attorney Tauber, his staff, and Appellant, that no violations of this Act would affect the intercepted
tapes' admissibility. See N.T. 11/24/08, pp. 122-25, 173, 179; N.T. 2/07/11, pp. 12-17, 148-53;
N.T. 2/07/11, pp. 112-13; N.T. 9/19/11, pp. 60-61; N.T. 6/13/11, pp. 135-36, 140-41. Further, as
we set forth in detail, Appellant did not establish any Wiretap Act violations warranting the
exclusion of the intercepted conversations on the intercepted tapes or the Wiretap Act documents
contained within 253-2004 and 253-2005.
Next, in terms of the $2,000, Detective Carroll testified that he provided Detective
McDonough with said currency, which was later signed into evidence on March 4, 2004, and
placed into an evidence locker by Detective McAteer, for which only he is responsible. N.T.
9/19/11, p. 192. Detective McAteer corroborated this. Further, Detective McAteer was under the
impression that this money had since been forfeited. N.T. 5/03/13, pp. 10-11, 17, 42. Therefore,
Appellant has not established a break in the chain of custody of the currency, and Fink cannot be
found ineffective for failing to ensure the currency was photographed/fingerprinted or otherwise
forensically tested or photographed, because conversation captured on Tape 6 verified that the
$2,000 was paid to Samios. This was further verified by the detectives' subsequent receipt of the
currency that was then immediately placed into evidence.
Appellant failed to raise his claim of the existence of "eyewitnesses" who were not
investigated by Fink in his Amended Petition and, accordingly, it is waived. See Pa.R.C.P.
902(A)(l 1), (12)(a) & (b). Nevertheless, Appellant has failed to set forth that counsel was or
should have been aware of the existence of the "eyewitnesses," or that the "eyewitness" was
prepared to cooperate and testify on behalf of Appellant. Because we do not know the identity of
these mystery eyewitnesses, Appellant is unable to establish prejudice. Appellant also failed to call
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these witnesses at any of the thirteen (13) evidentiary hearings following his grant of prose status,
and he was unable to identify for this Court the content of their proposed testimony. Thus, this
claim lacks merit.
Furthermore, subsumed in Appellant's allegation of Fink's failure to investigate is Fink's
failure to investigate the basis for Court's Exhibit l. We have previously explained that this
adequately set forth the factual basis for Appellant's plea, and we note that, in the absence of a
transcript from the preliminary hearing due to Appellant's decision to waive his preliminary
hearing, Judge Biehn reviewed the document that was prepared by Judge Gambardella and
stipulated to by Attorney Fink as being a fair and accurate representation of the facts in the
Commonwealth's possession at the time of the habeas corpus review.
Because we find none of Appellant's preceding claims have merit, Fink cannot be held
ineffective for failing to raise said frivolous claims.
Accordingly, we find trial counsel was not ineffective.
V. CONCLUSION
The issues with counsel and Appellant's independent choice to proceed pro se has
contributed to a plethora of procedural irregularities during the course of this litigation.
Appellant's January 14, 2009 Appeal from his PCRA proceedings, in which no Order denying his
claims and relief has been issued, was premature and caused a year-long delay. In addition, in the
interest of justice, we did not want to limit Appellant's ability to present any witnesses and
evidence he deemed relevant in support of his claims. Appellant, however, presented this court
with countless voluminous exhibits, which were irrelevant and collateral at best, and continued to
ask witnesses on examination either objectionable, repetitive, and/or minimally relevant questions.
Ultimately, our review of the Notes of Testimony, documents contained within 253-2004 and 254-
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2004, all PCRA filings made by both the Commonwealth and Appellant, and all claims raised
through Appellant's June 29, 2007 PCRA Petition and all Amended Petitions filed thereafter, as
well as our review of relevant statutory sections and caselaw, reveals Appellant has failed to prove
that he is entitled to relief pursuant to the PCRA. We find any and all issues raised herein are
without merit, and accordingly enter the Order attached hereto.
Albert J. Cepparulo,
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