Opinion

Corliss v. McGinley

Court: District Court, M.D. Pennsylvania
Filed: Aug 17, 2020
Cited by: 0 cases
Authority: More cited than 29.1%

“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”

How later courts described this case

“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”
“When the reliability of a witness may be determinative of guilt or innocence, non- disclosure of evidence affecting that witness’s credibility runs afoul of Brady’s disclosure requirement.”
“If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable.”
applying Miller requirements to section 2254 habeas petitions as well as to section 2255 petitions

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JUSTIN M. CORLISS, :

Petitioner, :

: 1:18-cv-2192

v. :

: Hon. John E. Jones III

THOMAS MCGINLEY, WARDEN, :

SCI COAL TOWNSHIP, :

Respondent. :

MEMORANDUM

August 17, 2020

Petitioner Justin M. Corliss (“Petitioner” or “Corliss”) filed the instant

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1),

accompanied by a supporting brief (Doc. 2), seeking relief from his judgment of

sentences entered in Monroe County Court of Common Pleas, Pennsylvania,

criminal cases 1749-CR-2013 for involuntary deviate sexual intercourse, incest,

attempted involuntary deviate sexual intercourse, corruption of minors, indecent

assault, endangering welfare of minors, indecent exposure, and 2173-CR-2013 for

aggravated indecent assault. (Doc. 1, pp. 1, 2).

The petition is ripe for disposition. For the reasons set forth below, the

Court will deny the petition.

I. FEDERAL COURT PROCEDURAL BACKGROUND

Upon initiation of the proceedings, an Order issued notifying Corliss of the

limitations upon his right to file another habeas petition in the future if his petition

is considered by the Court. (Doc. 8). Specifically, the Order notified him of the

following:

Under 28 U.S.C. § 2244(b)(3)(A), no second or successive habeas

petition under section 2254 is allowed unless there are exceptional

circumstances and the petitioner has obtained permission from the

appropriate court of appeals. See United States v. Miller, 197 F.3d 644,

649 (3d Cir. 1999); Mason v. Meyers, 208 F.3d 414, 417 (3d Cir. 2000)

(applying Miller requirements to section 2254 habeas petitions as well

as to section 2255 petitions). This means that if your current 2254

habeas petition is considered on the merits and rejected, you no longer

have the right simply to file another 2254 petition in this Court raising

other grounds for relief, even if you are attempting to raise grounds that

you did not think of before filing the current petition. Instead, you

would have to move in the Court of Appeals for a certificate allowing

you to file that second 2254 petition. Further, the grounds upon which

you could rely to obtain that certificate, and proceed with a subsequent

2254 petition, are limited to two extremely rare circumstances: (1) “the

claim relies on a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was previously

unavailable”, or (2) “the factual predicate for the claim could not have

been discovered previously through the exercise of due diligence” and

“the facts underlying the claim ... would be sufficient to establish by

clear and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense.” 28 U.S.C. § 2244(b)(2).

(Id.). The Order afforded him the opportunity to have the petition ruled on as filed

or withdraw the petition and file one all-inclusive petition. (Id. at 3). On January

18, 2019, Corliss elected to have the petition ruled on as filed. (Doc. 13).

The Court ordered the petition served and Respondent responded. (Doc.

21). Corliss filed a Traverse. (Doc. 22). Since then, he has filed a multitude of

exhibits, supplements, updates and amendments. (Docs. 19, 20, 29-31, 33, 41, 43).

A recent review of the Corliss’ state court electronic dockets revealed that he

initiated Post Conviction Relief Act (“PCRA”), 42 PA. CONS. STAT. §§ 9541-46,

proceedings in both criminal matters. https://ujsportal.pacourts.us. This prompted

the Court to stay the matter in accordance with the stay and abeyance rule

announced in Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004) (finding that

“[s]taying a habeas petition pending exhaustion of state remedies is a permissible

and effective way to avoid barring from federal court a petitioner who timely files

a mixed petition”) and administratively close the case. Corliss immediately moved

to vacate the Order, indicating that he desired to proceed with the petition as filed.

(Doc. 38). The Court again notified him of the limitations on his right to file

another habeas petition in the future. (Doc. 39). He chose to forego the benefit of

the stay, indicated that he understood that he loses his ability to file a second or

successive petition absent certification by the United States Court of Appeals for

the Third Circuit and that his potential for relief is further limited in a second or

successive petition. (Docs. 40, 42). On July 14, 2020, we lifted the stay, reopened

the case, and indicated that a decision in the matter would be forthcoming. (Doc.

42).

II. STATE COURT FACTUAL AND PROCEDURAL BACKGROUND

In its Memorandum addressing Corliss’ direct appeal of the convictions

obtained in 1749-CR-2013 and 2173-CR-2013, the Superior Court of Pennsylvania

(“Superior Court”) set forth the following factual and procedural histories:1

[Appellant] operated a pet store in Monroe County. In 1993, [appellant]

commenced a romantic relationship with his coworker, K.V. Shortly

thereafter, [appellant] moved in the residence K.V. shared with her

minor daughter, R.V. In 1995, when R.V. was approximately nine years

old, [appellant] began to molest R.V. At first, [appellant] would tickle

R.V. when they played together. [Appellant’s] behavior escalated,

however, and he began placing his hands down R.V.’s pants.

[Appellant] digitally penetrated R.V. on multiple occasions between

1995 and 1997. The abuse occurred at K.V.’s residence, often while

K.V. was in another room. On one occasion, [appellant] inappropriately

touched R.V. during a car trip to New York. The molestation continued

until 1997, when [appellant] moved out of K.V.’s residence. R.V. did

not immediately report the abuse.

In 1996, fourteen-year old [D.B.1] began to work at [appellant’s] pet

store. [footnonte 1: At the time of appellant's 1998 trial, D.B. was

known as D.G. For the purposes of continuity, we will refer to her as

D.B. throughout this memorandum.]. [D.B.]’s father was a regular

customer at the pet store, and [appellant] had known [D.B.] since she

was eleven years old. After [D.B.] started working at the pet store,

[appellant] would tickle her. [Appellant’s] behavior escalated, and he

began placing his hands down [D.B.]’s pants. Eventually, [appellant]

and [D.B.] engaged in sexual intercourse. [Appellant] also performed

oral sex on [D.B.] on multiple occasions.

The abuse occurred at the pet store during regular business hours. On

two occasions, [D.B.]’s twelve-year-old friend witnessed the sexual

activity. [Appellant] also fondled [D.B.] during car trips to New York.

1 In reciting the factual history, the Superior Court quoted a previous appellate panel. In setting

forth the procedural history, the court relied on the trial court’s depiction of events.

[D.B.] testified that [appellant] took her on these trips “almost every

single Monday” to pick up supplies for the pet store. In addition to the

liaisons at work, [appellant] molested [D.B.] at K.V.'s residence at least

once. In 1997, [D.B.]’s mother learned about the abuse and

immediately informed the police.

At No. 743 of 1997, the Commonwealth charged [appellant] with

multiple offenses related to the molestation of [D.B.] Following a trial

in 1998, a jury convicted [appellant] of two (2) counts of statutory

sexual assault and one (1) count each of aggravated indecent assault,

indecent assault, and corruption of minors. On August 20, 1998, the

[trial] court sentenced [appellant] to an aggregate term of four (4) to ten

(10) years’ imprisonment. This Court affirmed the judgment of

sentence on November 30, 1999. See Commonwealth v. Corliss, 750

A.2d 366 (Pa.Super. 1999) (unpublished memorandum).

Prior to the start of the 1998 trial, [appellant] met C.T. at the pet store.

[Appellant] and C.T. married, and C.T. became pregnant before

[appellant’s] sentencing hearing. C.T. gave birth to [appellant’s]

daughter, C.C., in 1999 while [appellant] was incarcerated. [Appellant]

remained incarcerated until 2008. Upon his release, [appellant] returned

to live with C.T. and C.C. C.T. had no concerns about [appellant] being

around C.C., because [appellant] had convinced C.T. that he was

actually innocent of the charges pertaining to [D.B.]

When [appellant] would play with C.C., C.T. noticed that [appellant]

tickled the child and scratched the child’s back. The tickling started to

bother C.C., and she asked [appellant] not to touch her, but C.T. did not

intervene. [Appellant’s] relationship with C.T. ended in 2010, after

C.T. discovered that [appellant] was having an affair with another

teenager. In 2013, C.C. informed C.T. that [appellant] had molested her.

C.C. claimed that [appellant] would put his hands down her pants and

touch her vagina, exposed his penis to C.C., and attempted to force the

child to perform oral sex on him.

Police arrested [appellant] for the offenses against C.C. in July 2013.

The media reported on [appellant’s] arrest, and R.V. saw the coverage.

R.V. decided to contact police and inform them of the abuse she

suffered from 1995 until 1997. At No. 1749 of 2013, the

Commonwealth charged [appellant] with sex offenses committed

against C.C. At No. 2173 of 2013, the Commonwealth charged

[appellant] with sex offenses committed against R.V. [Footnote 1] On

September 24, 2013, the Commonwealth informed [appellant] that Nos.

1749 and 2173 of 2013 would be joined for trial. [Appellant] filed

counseled pretrial motions on October 3, 2013, including a motion to

sever the cases. Ultimately, the [trial] court granted [appellant’s]

motion to sever the cases for trial.

[Footnote 1:] At No. 1748 of 2013, the Commonwealth also

charged [appellant] with offenses related to his failure to register

with state police pursuant to Megan's Law. The matters of No.

1748 of 2013 are not at issue in this appeal.

Commonwealth v. Corliss, No. 2091 EDA 2014, unpublished

memorandum (Pa. Super. filed July 14, 2015).

The trial court provided the following procedural history:

[Appellant] was convicted by a jury on June 1, 2016 of various offenses

following a trial in which these two (2) cases were consolidated. In case

# 1749 CR 2013, [appellant] was convicted of Count 1, Involuntary

Deviate Sexual Intercourse With a Child; Count 2, Criminal Attempt

Involuntary Deviate Sexual Intercourse With a Child; Count 3, Indecent

Assault; Count 4, Indecent Exposure; Count 5, Incest; Count 6,

Endangering the Welfare of a Child; and, Count 7, Corruption of a

Minor. [Footnote 2: 18 Pa.C.S.A. §§ 3123(b), 901, 3126, 3127, 4302,

4304, 6301, and 3125, respectively.]. [Appellant] was convicted in

case # 2173 CR 2013 of Court 1, Aggravated Indecent Assault;

[Footnote 3: 18 Pa.C.S.A. § 3125.] and Count 2, Aggravated Indecent

Assault....

[Appellant] was deemed a sexually violent predator (“SVP”) on

September 29, 2016 following a hearing, which subjects him to

mandatory lifetime sexual offender registration requirements.

[Appellant] was then sentenced on October 7, 2016 in case # 1749 CR

2013 to a total confinement of 360 months (30 years) minimum to 720

months (60 years) maximum. [Appellant] was sentenced on October 7,

2016 in case # 2173 CR 2013 to a total confinement of 108 months (9

years) minimum to 216 months (18 years) maximum. The sentence in

case # 2173 was run consecutive to case # 1749 for a total period of

incarceration of 468 months (39 years) to 936 months (78 years).

[Appellant] has filed timely post-sentence motions.

[Appellant] was initially represented in these matters by private

counsel, Robert Saurman, Esquire, who filed omnibus pre-trial motions

on behalf of [appellant. Appellant] then fired his legal counsel and

proceeded pro se following a hearing in which a colloquy was given to

[appellant] concerning his right to counsel, a listing of the offenses and

maximum penalties if convicted, and that [appellant] was making a

voluntary waiver of counsel. The Court also appointed stand-by counsel

for [appellant. Appellant] then represented himself pro se in filing

various motions and appeals to Orders. The matter was set for trial and

[appellant] then retained private counsel prior to the start of trial.

[Appellant] terminated the services of his trial counsel soon after the

trial, and again proceeded to represent himself following a hearing on

his motion to proceed pro se. [Appellant] was given another colloquy

on his pro se representation at that time. [Appellant] represented

himself at sentencing held on October 7, 2016. Following sentencing,

[appellant] filed post-sentence motions pro se. He then retained counsel

to represent him on the post-sentence issues and counsel was afforded

additional time to file any additional post-sentence motions. Counsel

timely filed additional post-sentence motions. [Appellant] then filed a

motion to proceed pro se once again, and his counsel also filed a motion

to withdraw. Following a hearing held on November 23, 2016, and a

colloquy placed on the record, [appellant] was allowed to proceed pro

se on his post-sentence motions.

Trial court opinion, 12/15/16 at 1–3.

The trial court granted appellant’s post-sentence motions in part and

denied appellant’s post-sentence motions in part. Specifically,

appellant’s motion to reconsider his sentence for endangering the

welfare of a child was granted, and his sentence was reduced from 2–4

years’ incarceration to be served concurrently with his other sentences

to 1–2 years’ incarceration to be served concurrently with his other

sentences. (Notes of testimony, 10/7/16 at 84; trial court order,

12/15/16).

Appellant filed a notice of appeal on January 3, 2017. The trial court

ordered appellant to produce a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b) on January 4, 2017.

Appellant timely complied with the trial court’s order on January 20,

2017. On January 23, 2017, the trial court issued an opinion pursuant

to Pa.R.A.P 1925(a).

Appellant raises the following issues for our review:

1. Whether a judgment of acquittal or an arrest of judgment must issue

as to six crimes convicted of when the jury did not render a decision as

to the challenged element of negating the statute of limitations.

2. Whether the testimony of complainant C.C. was sufficient to meet

the elements of involuntary deviate sexual intercourse and incest.

3. Whether testimony of intercourse, that conflicts with incontrovertible

DNA evidence, and other false testimony suborned by ADA

Rakaczewski from bad acts witness [D.B.], violates the 5th, 6th, and

14th Amendments to the U.S. Constitution requiring the conviction to

be vacated.

4. Whether the trial court's representation of the exculpatory DNA

evidence is violative (sic) of the right to due process of law. [Footnote

4: Issue 4 is identified by appellant as a “subquestion” under his third

issue.].

5. Whether Rakaczewski's deliberate omission of exculpatory evidence

and known credibility challenges, as to complainant C.C., violated

[appellant's] right to due process of law, as guaranteed through the U.S.

Constitution, warranting that the conviction and sentence be vacated.

Appellant's brief at 4.

Commonwealth v. Corliss, No. 108 EDA 2017, 2017 WL 6196304, at *1–3 (Pa.

Super. Ct. Dec. 8, 2017). The Superior Court affirmed Corliss’ judgment of

sentence on December 8, 2017. (Id.). Thereafter, on February 14, 2018, the court

denied reargument. Com. v. Corliss, 181 A.3d 1212 (Pa. Super. Ct. 2017), for text,

see Commonwealth v. Corliss, No. 108 EDA 2017, 2017 WL 6196304 (Pa. Super.

Ct. Dec. 8, 2017). The Supreme Court of Pennsylvania denied the petition for

allowance of appeal on October 30, 2018. Commonwealth v. Corliss, 196 A.3d

616 (Pa. 2018).

On November 13, 2018, he filed the instant petition.

III. ISSUES PRESENTED FOR FEDERAL REVIEW

Corliss seeks federal review of the following issues:

“Ground #1: Petitioner was charged with crimes that are time-barred;

thereby, the Commonwealth failed to establish prima facie cases and

the courts lacked subject matter jurisdiction to proceed on them as

doing so violates due process of law and implicates the ex post facto

clause.” (Doc. 2, p. 23).

“Ground #2: The convictions for any of the six time-barred charges

were unconstitutionally obtained as the court relieved the

Commonwealth of the burden to prove the essential element of crime

of negating limitations.” (Id. at 39).

“Ground #3: Petitioner was charged with crimes that possess an

element of ‘sexual intercourse’ though no evidence exists to support

same; thereby, the Commonwealth failed to establish a prima facie case

as to any of these charges and the court lacked jurisdiction to proceed

on them.” (Id. at 54).

“Ground #4: The conviction for any of the three charges having an

element of ‘sexual intercourse’ were unconstitutionally obtained as no

evidence was adduced to support such.” (Id. at 62).

“Ground #5: It was constitutional error for the trial court to change the

evidence required to meet ‘sexual intercourse,’ upon instructing the

jury, to elements Petitioner was not on notice to defend against,

resulting in an impermissible variance.” (Id. at 67).

“Ground #6: Prosecutor Rakaczewski engaged in the criminal

subornation of perjury from [D.B.]” (Id. at 89).

“Ground #7: Rakaczewski refused to put into evidence emails and

other known evidence that challenged C.C’s credibility and proves that

no untoward conduct occurred.” (Id. at 112).

“Ground #8: Rakaczewski refused to correct [D.B.’s] stated claim that

the DNA evidence from 1998 was ‘inconclusive.’ ” (Id. at 131).

“Ground #9: Petitioner was subjected to a mandatory minimum

sentence that was based on the false conviction from 1998 involving

[D.B.], the DNA evidence, and is unconstitutional as a matter of law.”

(Id. at 152).

IV. DISCUSSION

A. Standard of Review

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper

mechanism for a prisoner in custody pursuant to the judgment of a state court to

challenge the “fact or duration” of his confinement. Preiser v. Rodriguez, 411 U.S.

475, 498-99 (1973). 28 U.S.C. § 2254, provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district

court shall entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws

or treaties of the United States.

(b)(1) an application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be granted

unless it appears that –

(A) the applicant has exhausted the remedies available in

the courts of the State;

...

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.

28 U.S.C. § 2254.

Section 2254 clearly sets limits on the power of a federal court to grant an

application for a writ of habeas corpus on behalf of a state prisoner. Cullen v.

Pinholster, 536 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir.

2014). A federal court may consider such a petition only “on the ground that he is

in custody in violation of the Constitution or laws or treaties of the United States.”

28 U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates “the

Constitution or laws or treaties of the United States,” § 2254 places a high

threshold on the courts.

Further, “it is not the province of a federal habeas court to reexamine state-

court determinations on state-law questions. In conducting habeas review, a

federal court is limited to deciding whether a conviction violated the Constitution,

laws, or treaties of the United States. 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S.

19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975) (per curiam).” Estelle v.

McGuire, 502 U.S. 62, at 67–68 (1991). A federal habeas court may not consider a

petitioner’s claims of state law violations; review is limited to issues of federal

law. See Estelle, 502 U.S. at 67-68 (“[I]t is not the province of a federal habeas

court to reexamine state-court determinations on state-law questions.”); Pulley v.

Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the

basis of a perceived error of state law.”); Engle v. Isaac, 456 U.S. 107, 120 n.19

(1982) (“If a state prisoner alleges no deprivation of a federal right, § 2254 is

simply inapplicable.”).

B. Non-Cognizable Claims

1. Grounds 1and 2

Corliss challenges his convictions in 1749-CR-2013 and 2173-CR-2013 on

timeliness grounds.2 He specifically takes issue with the state courts’ conclusions

that, in accordance with Pennsylvania law, the statute of limitations defense posed

a question of law for the judge as opposed to a question of fact to be submitted to

the jury. The state noted that “ ‘[w]here the date of discovery of criminal acts is

unrebutted, the issue of whether the statute of limitations for prosecution has run is

a question of law for the trial judge.’ Corban Corp., 909 A.2d at 410, citing

Commonwealth v. Hoffman, 398 A.2d 658, 661 (Pa.Super. 1979).” Commonwealth

v. Corliss, No. 108 EDA 2017, 2017 WL 6196304, at *4 (Pa. Super. Ct. Dec. 8,

2017). “In Pennsylvania, the statute of limitations is not a constitutional right but,

instead, is an act of legislative grace, whereby the government surrenders its ability

to prosecute an individual after the passage of a stated period of time. See

Commonwealth v. Johnson, 520 Pa. 165, 170, 553 A.2d 897, 900 (1989); see also

Commonwealth v. Wilcox, 56 Pa.Super. 244, 250 (1914).” Com. v. Russell, 2007

PA Super 376, 938 A.2d 1082, 1087 (2007). Corliss’ challenges to the timeliness

of the prosecutions on state law grounds are not cognizable in a federal habeas

corpus proceeding. To the extent that this claim implicates federal rights, it is

2 “In considering a § 2254 petition, we review the ‘last reasoned decision’ of the state courts on

the petitioner’s claims.” Simmons v. Beard, 590 F.3d 223, 231–32 (3d Cir. 2009) (citing Bond v.

Beard, 539 F.3d 256, 289–90 (3d Cir. 2008) ). The trial court issued multiple consistent decision

on the statute of limitations in 1749 CR 2013 and 2173 CR 2013. On appeal, the Superior Court

only addressed 1749 CR 2013. Hence, we rely on both the trial court and appeals courts’

determinations in analyzing the statute of limitations claims.

addressed in the merits section below.

2. Grounds 3, 4, and 5

In challenging the IDSI convictions, Corliss argues that the state court

ignored various definitions outside the IDSI statute in upholding the convictions.

He invites the Court to engage in statutory construction and delve into the intent of

the Pennsylvania General Assembly. (Doc. 2, pp. 56, 57, 60, 63, 64, 69, 71, 72,

79). We will not consider these arguments as they are based on state law grounds.

However, the federal claim of whether there existed sufficient evidence to support

the IDSI convictions is addressed in the merits section infra.

C. Exhaustion and Procedural Default

Absent unusual circumstances, a federal court should not entertain a petition

for writ of habeas corpus, unless the petitioner has first satisfied the exhaustion

requirement articulated in 28 U.S.C. § 2254(b). The exhaustion requirement is

grounded on principles of comity to ensure that state courts have the initial

opportunity to review federal constitutional challenges to state convictions. See

Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000); Picard v. Connor, 404 U.S.

270, 275–76 (1971). The habeas statute codifies this principle by requiring that a

petitioner exhaust available remedies in state court, meaning a state prisoner must

“fairly present” his claims in “one complete round of the state’s established

appellate review process,” before bringing them in federal court. See 28 U.S.C. §

2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (stating

“[b]ecause the exhaustion doctrine is designed to give the state courts a full and

fair opportunity to resolve federal constitutional claims before those claims are

presented to the federal courts, . . . state prisoners must give the state courts one

full opportunity to resolve any constitutional issues by invoking one complete

round of the State’s established review process.”); see also Duncan v. Henry, 513

U.S. 364, 365 (1995); Picard, 404 U.S. at 275 (1971); Lambert v. Blackwell, 134

F.3d 506, 513 (3d Cir. 1997). This requires that the claim brought in federal court

be the substantial equivalent of that presented to the state courts. Picard, 404 U.S.

at 278; see also McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (holding

that petitioner must present both “factual and legal substance” of claim to state

courts). Mere reliance of state and federal claims on the same constitutional

provision does not render the two claims substantially equivalent. See Brown v.

Cuyler, 669 F.2d 155 (3d Cir. 1982); Zicarelli v. Gray, 543 F.2d 466 (3d Cir.

1976). Both the legal theory and the facts on which a federal claim rests must have

been presented to the state courts. See Picard, 404 U.S. at 277; Brown, 669 F.2d at

158–61.

Additionally, a federal habeas court “will not review a question of federal

law decided by a state court if the decision of that court rests on a state law ground

that is independent of the federal question and adequate to support the judgment.

See, e.g., Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed.

158 (1935); Klinger v. Missouri, 13 Wall. 257, 263, 20 L.Ed. 635 (1872). This rule

applies whether the state law ground is substantive or procedural. See, e.g., Fox

Film, supra; Herndon v. Georgia, 295 U.S. 441, 55 S.Ct. 794, 79 L.Ed. 1530

(1935).” Coleman, 501 U.S. at 729, holding modified by Martinez v. Ryan, 566

U.S. 1 (2012). The requirements of “independence” and “adequacy” are distinct.

Johnson v. Pinchak, 392 F.3d 551, 557-59 (3d Cir. 2004). State procedural

grounds are not independent, and will not bar federal habeas relief, if the state law

ground is so “interwoven with federal law” that it cannot be said to be independent

of the merits of a petitioner’s federal claims. Coleman, 501 U.S. at 739-40. A state

rule is “adequate” for procedural default purposes if it is “firmly established and

regularly followed.” Johnson v. Lee, ––– U.S. ––––, 136 S. Ct. 1802, 1804, 195

L.Ed.2d 92 (2016) (per curiam) (citation omitted). These requirements ensure that

“federal review is not barred unless a habeas petitioner had fair notice of the need

to follow the state procedural rule,” and that “review is foreclosed by what may

honestly be called ‘rules’ ... of general applicability[,] rather than by whim or

prejudice against a claim or claimant.” Bronshtein v. Horn, 404 F.3d 700, 707-08

(3d Cir. 2005). “In the absence of the independent and adequate state ground

doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion

requirement by defaulting their federal claims in state court. The independent and

adequate state ground doctrine ensures that the States’ interest in correcting their

own mistakes is respected in all federal habeas cases.” Edwards v. Carpenter, 529

U.S. 446, 452-53 (2000).

The failure to properly present claims to the state court generally results in a

procedural default. Lines v. Larkin, 208 F.3d 153, 150-60 (3d Cir. 2000). “When a

claim is not exhausted because it has not been ‘fairly presented’ to the state courts,

but state procedural rules bar the applicant from seeking further relief in state

courts, the exhaustion requirement is satisfied because there is ‘an absence of

available State corrective process.’ 28 U.S.C. § 2254(b). In such cases, however,

applicants are considered to have procedurally defaulted their claims and federal

courts may not consider the merits of such claims unless the applicant establishes

‘cause and prejudice’ or a ‘fundamental miscarriage of justice’ to excuse his or her

default. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115

L.Ed.2d 640 (1991).” McCandless, 172 F.3d at 260.

To demonstrate “cause” for a procedural default, a petitioner must point to

some objective external factor which impeded his efforts to comply with the state’s

procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). “Prejudice”

will be satisfied only if he can demonstrate that the outcome of the state

proceeding was “unreliable or fundamentally unfair” as a result of a violation of

federal law. See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).

Alternatively, if a petitioner demonstrates that a “constitutional violation has

probably resulted in the conviction of one who is actually innocent,” Murray, 477

U.S. at 496, then a federal court can excuse the procedural default and review the

claim in order to prevent a fundamental miscarriage of justice. Edwards, 529 U.S.

at 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). The

miscarriage of justice exception applies only in extraordinary cases, and actual

innocence means factual innocence, not legal insufficiency. Bousley v. United

States, 523 U.S. 614, 623 (1998); Murray, 477 U.S. at 496. A petitioner

establishes actual innocence by asserting “new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial,” showing that no reasonable

juror would have voted to find the petitioner guilty beyond a reasonable doubt.

Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).

1. Ground 8

In his eighth ground, Corliss argues that he is entitled to relief because the

prosecutor refused to correct DB’s claim that the DNA evidence from 1998 was

inconclusive. (Doc. 2, p. 131). He relies on a March 2017 DNA report which

purports to exclude him as the donor of any DNA material found on DB’s clothes.

(Id. at 136-151).

Corliss raised the issue on appeal. The Superior Court did not consider the

claim stating as follows:

The [March 1, 2017 DNA] report is not found within the record that

was certified by the trial court.

The fundamental tool for appellate review is the official record of

the events that occurred in the trial court. Commonwealth v.

Williams, 715 A.2d 1101, 1103 (Pa. 1998). To ensure that an

appellate court has the necessary records, the Pennsylvania Rules

of Appellate Procedure provide for the transmission of a certified

record from the trial court to the appellate court. Id. The law of

Pennsylvania is well settled that matters which are not of record

cannot be considered on appeal. Commonwealth v. Bracalielly,

658 A.2d 755, 763 (Pa. 1995); Commonwealth v. Baker, 614 A.2d

663, ,672 (Pa. 1992); Commonwealth v. Quinlan, 412 A.2d 494,

496 (Pa. 1980); Commonwealth v. Young, 317 A.2d 258 (Pa.

1974). Thus, an appellate court is limited to considering only the

materials in the certified record when resolving an issue.

Commonwealth v. Walker, 878 A.2d 887, 888 (Pa. Super. 2005).

In this regard, our law is the same in both the civil and criminal

context because, under the Pennsylvania Rules of Appellate

Procedure, any document which is not part of the officially

certified record is deemed non-existent—a deficiency which

cannot be remedied merely by including copies of the missing

documents in a brief or in the reproduced record. Commonwealth

v. Kennedy, 868 A.2d 582, 593 (Pa.Super. 2005); Lundy v.

Manchel, 865 A.2d 850, 855 (Pa.Super. 2004). The emphasis on

the certified record is necessary because, unless the trial court

certifies a document as part of the official record, the appellate

judiciary has no way of knowing whether that piece of evidence

was duly presented to the trial court or whether it was produced

for the first time on appeal and improperly inserted into the

reproduced record. Simply put, if a document is not in the certified

record, the Superior Court may not consider it. Walker, 878 A.2d

at 888.

Commonwealth v. Preston, 904 A.2d 1, 6–7 (Pa.Super. 2006), appeal

denied, 916 A.2d 632 (Pa. 2007).

Because the March 1, 2017 report is not part of the certified record, we

cannot consider the contents of the report when deciding appellant’s

third issue.

Commonwealth v. Corliss, 2017 WL 6196304, at *7–8. The applicable procedural

rule firmly states that the state court may not consider anything that is not part of

the certified record: “Any document which is not part of the official certified

record is considered to be non-existent, which deficiency may not be remedied by

inclusion in the reproduced record[,]” and “[w]here a review of an appellant’s

claim may not be made because of such a defect in the record, we may find the

issue waived.” Eichman v. McKeon, 824 A.2d 305, 316 (Pa.Super.2003) (citing

PA.R.A.P. 1921). Rule 1921 states that “[t]he original papers and exhibits filed in

the lower court, paper copies of legal papers filed with the prothonotary by means

of electronic filing, the transcript of proceedings, if any, and a certified copy of the

docket entries prepared by the clerk of the lower court shall constitute the record

on appeal in all cases.” PA.R.A.P., Rule 1921.

“A state court’s invocation of a procedural rule to deny a prisoner’s claims

precludes federal review of the claims if, among other requisites, the state

procedural rule is a nonfederal ground adequate to support the judgment and the

rule is firmly established and consistently followed. See, e.g., Walker v. Martin,

562 U.S. ––––, ––––, 131 S.Ct. 1120, 1127–1128, 179 L.Ed.2d 62 (2011); Beard v.

Kindler, 558 U.S. ––––, ––––, 130 S.Ct. 612, 617–618, 175 L.Ed.2d 417 (2009).

The doctrine barring procedurally defaulted claims from being heard is not without

exceptions. A prisoner may obtain federal review of a defaulted claim by showing

cause for the default and prejudice from a violation of federal law. See Coleman,

501 U.S., at 750, 111 S.Ct. 2546.” Martinez v. Ryan, 566 U.S. 1, 9–10 (2012).

There is no dispute that Pennsylvania’s procedural bar applicable to reliance

on, or inclusion of, a document which is not part of the officially certified record

on appeal is a firmly established independent and adequate state law ground. Thus,

we can hear this claim only if Corliss can establish cause to excuse the procedural

default and prejudice from a violation of federal law. He fails to identify some

objective external factor which prevented him from complying with the state’s

procedural rules in presenting this claim and he does not demonstrate that the

outcome of the state proceeding was “unreliable or fundamentally unfair” as a

result of a violation of federal law. Nor is there any argument or indication that a

“constitutional violation has probably resulted in the conviction of one who is

actually innocent,” Murray, 477 U.S. at 496. Federal review of the claim is

therefore barred.

2. Ground 9

In Ground 9, Corliss contends that he “was subjected to a mandatory

minimum sentence that was based on a false conviction from 1998 involving

[D.B.], the DNA evidence, and is unconstitutional as a matter of law.” (Doc. 2, pp.

152-159). This issue is included in the “Sentencing” section of his Statement of

Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). (Doc. 21-20, p.

5). In its Pa.R.A.P. 1925(a) opinion, the trial court referenced its prior opinion

addressing post-sentence motions, which included a discussion of the mandatory

minimum sentence. (Doc. 21-17, pp. 28, 29; Doc. 21-21). However, Corliss failed

to pursue the matter in the Superior Court. His brief is devoid of any mention of

the mandatory minimum sentence issue. (Doc. 21-22, p. 3). Consequently, the

claim is procedurally defaulted.

He fails to identify some objective external factor which prevented him from

complying with the state’s procedural rules in presenting this claim and he does not

demonstrate that the outcome of the state proceeding was “unreliable or

fundamentally unfair” as a result of a violation of federal law. Nor is there any

argument or indication that a “constitutional violation has probably resulted in the

conviction of one who is actually innocent,” Murray, 477 U.S. at 496. Federal

review of the claim is foreclosed.

D. Review of Claims Adjudicated on the Merits

As set forth supra, under the AEDPA, federal courts reviewing a state

prisoner’s application for a writ of habeas corpus may not grant relief “with respect

to any claim that was adjudicated on the merits in State court proceedings” unless

the claim (1) “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or (2) “resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d). “In considering a § 2254

petition, we review the ‘last reasoned decision’ of the state courts on the

petitioner’s claims.” Simmons v. Beard, 590 F.3d 223, 231–32 (3d Cir. 2009)

(citing Bond v. Beard, 539 F.3d 256, 289–90 (3d Cir. 2008) ). Thus, “[w]e review

the appellate court decision, not the trial court decision, as long as the appellate

court ‘issued a judgment, with explanation, binding on the parties before it.’ ”

Burnside v. Wenerowicz, 525 F. App’x 135, 138 (3d Cir. 2013). However, when

the highest state court that considered the claim does not issue a reasoned opinion,

we “look through” that decision to the last reasoned opinion of the state courts, and

we apply a rebuttable presumption that the higher court adopted the same

reasoning as that set forth by the lower court. Wilson v. Sellers, — U.S. —, 138 S.

Ct. 1188, 1192 (2018).

“[B]ecause the purpose of AEDPA is to ensure that federal habeas relief

functions as a guard against extreme malfunctions in the state criminal justice

systems, and not as a means of error correction,” Greene v. Fisher, 565 U.S. 34, 38

(2011) (internal quotations and citations omitted), “[t]his is a difficult to meet and

highly deferential standard . . . which demands that state-court decisions be given

the benefit of the doubt.” Cullen, 563 U.S. at 181(internal quotation marks and

citation omitted). The burden is on Corliss to prove entitlement to the writ. Id.

A decision is “contrary to” federal law if “the state court applies a rule that

contradicts the governing law set forth in [Supreme Court] cases” or “if the state

court confronts a set of facts that are materially indistinguishable from a decision

of [the Supreme] Court and nevertheless arrives at a result different from [Supreme

Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

“[A] state court decision reflects an ‘unreasonable application of such law’

only ‘where there is no possibility fairminded jurists could disagree that the state

court’s decision conflicts with [the Supreme] Court’s precedents,’ a standard the

Supreme Court has advised is ‘difficult to meet’ because it was ‘meant to be.’

[Harrison v.] Richter, 562 U.S. 86, [ ] 102, 131 S.Ct. 770. As the Supreme Court

has cautioned, an ‘unreasonable application of federal law is different from an

incorrect application of federal law,’ Richter, 562 U.S. at 101, 131 S.Ct. 770

(quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495), and whether we ‘conclude[ ]

in [our] independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly’ is irrelevant, as AEDPA sets a

higher bar. Williams, 529 U.S. at 411, 120 S.Ct. 1495.” Mathias v. Superintendent

Frackville SCI, 876 F.3d 462, 476 (3d Cir. 2017). A decision is based on an

“unreasonable determination of the facts” if the state court’s factual findings are

objectively unreasonable in light of the evidence presented to the state court.

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

Finally, Section 2254(e) provides that “[i]n a proceeding instituted by an

application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination of a factual issue shall be presumed to

be correct. The applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

1. Grounds 1 and 2

In his first and second grounds, Corliss argues that the prosecutions in 1949

CR 2013 and 2173 CR 2013, were barred by the statute of limitations. In criminal

case 1749 CR 2013, he was charged with indecent assault, indecent exposure,

corruption of a minor, endangering the welfare of minors, each of which possess a

two-year statute of limitations. (Doc. 2, p. 24). He argues that “each crime

contains an element requiring the prosecution to assert evidence that ‘negatives a

defense under the statute of limitations.’ (18 Pa.C.S.A. § 103 Definitions:

Elements of an offense).” (Id. at 25). It is his position that the limitations for each

of these four crimes expired in June of 2012, and that bringing them in July of

2013, violates due process of law and the ex post facto clause. (Id.); (Docs. 30,

31).

He also asserts that the 2173 CR 2013 prosecution, in which he was charged

with two counts of indecent contact “occurring at some nebulous time, prior to July

of 1997,” were barred. (Doc. 2, p. 26). He avers that the charge of “A[ggravated]

I[ndecent] A[ssault] in 1997 had a limitations period of ‘5 years’ which expired in

2002 [Act 17 of 1996, amending 42 Pa.C.S.A. § 5552(a)]; thereby charging in

2013 was patently without authorization to do so.” (Id.); (Docs. 30, 31).

Procedurally, Corliss unsuccessfully challenged the statute of limitations in

numerous pre-trial and post-trial motions. (Docs. 2-2, pp. 8-10, 20-26, 57-59; Doc.

21-3, pp. 4-8; Doc. 21-13, pp. 5, 6, 8, 9; Doc. 21-17, pp. 17, 19, 21). In the

Omnibus Opinion Order entered on January 7, 2014, the trial court considered the

Counts lodged in 2173 CR 2013 pertaining to victim R.V. The court noted that the

incidents were alleged to have occurred between 1995 and 1998, and that the

Defendant conceded that the victim was born in January 1986 and turned 18 in

2004. (Doc. 21-3, p. 4). The court then found that the charges were subject to the

exception set forth in 42 PA.C.S.A. § 5552(c)(3), which states that “(3) Any sexual

offense committed against a minor who is less than 18 years of age at any time up

to the later period of limitations provided by law after the minor has reached 18

years of age or the date the minor reaches 50 years of age. As used in this

paragraph, the term ‘sexual offense’ means a crime under the following provisions

of Title 18 (relating to crimes and offenses): … Section 3125 relating to aggravated

indecent assault. Section 3126 (relating to indecent assault) … Section 4304

(relating to endangering the welfare of children). Section 6301 (relating to

corruption of minors).” (Doc. 21-3, p. 6). Further, with respect to Counts 1 and 2,

Aggravated Indecent Assault, the trial court found that the time limitation “was

extended for twelve (12) years after R.V. turned 18 under Sections 5552 (b.1) and

(c). This date would be January 2016. The Commonwealth commenced its

prosecution within this time frame so the time limitations were tolled.” (Id. at 6,

7). Consequently, the court denied the motion for dismissal of Counts 1 and 2 on

statute of limitations grounds.

Post-trial, the trial court revisited the timeliness of the prosecutions in both

cases in an October 7, 2016 Opinion and Order addressing a pro se motion for

extraordinary relief, and ruled as follows:

The Defendant next contends the statute of limitations bars the charges

and the conviction in case #2173 CR 2013. This issue has been ruled

upon many times pre-trial. The Defendant now asserts that some

instruction should have been given to the jury to determine the statute

of limitations and/or that the evidence was insufficient to show the

Commonwealth proved an exception to the statute of limitations. We

disagree. For the reasons stated in prior pre-trial orders of this Court,

the charges were not time barred and no further instructions were

required or necessary to be given to the jury. The Defendant is not

entitled to an acquittal based upon the statute of limitations defense.

The conduct complained of was the type that fell within the applicable

statute of limitations period in effect after the complainant turned 18 as

a matter of law. As previously ruled upon, the Commonwealth only

had to file the instant charges within twelve (12) years after the

complainant turned 18. We previously found that they had done so.

***

[In case #1949 CR 2013 (C.C.)], [t]he Defendant next alleges that the

statute of limitations for indecent assault, indecent exposure,

endangering the welfare of children and corruption of minors applies.

The Defendant asserts, as in case #2173 CR 2013, that the evidence

failed to negate a defense of the statute of limitations for these offenses.

This Court previously ruled on the statute of limitations defense several

times in pre-trial orders. The Defendant mistakenly believes that these

charges either had to be brought within two (2) years of the offense

dates, or within two (2) years after the complainant turns 18. As

previously cited in prior orders, the statute of limitations in these

matters does not run until (2) years after C.C. turns 18; such that the

Defendant can be charged and tried anytime between the offense date

and up until two (2) years after C.C. turns 18. C.C. has not yet turned

18. The Commonwealth had no duty to prove anything to the jury in

this regard. The Defendant’s motion will be denied.

(Doc. 21-13, pp. 5, 6, 8, 9).

Corliss’ statute of limitations argument was addressed by the trial court yet

again and rejected for the same reasons as in previous orders of court in an Opinion

and Order disposing of post-sentence motions. (Doc. 21-17, pp. 17, 19, 21). In

issuing its Statement pursuant to PA.R.A.P. 1925(a), the court noted that the

December 15, 2016 Opinion and Order and prior Opinions and Orders entered

addressed, inter alia, the statute of limitations arguments.

He continued pursuit of the statute of limitations during the appeal of his

October 7, 2016 judgment of sentence posing the question of “[w]hether a

judgment of acquittal or an arrest of judgment must issue as to six crimes

convicted of when the jury did not render a decision as to the challenged element

of negating the statute of limitations.” (Doc 21-22, p. 3). He argued on appeal, as

he does here, that “[u]nder Pennsylvania law, the ‘Commonwealth is required to

prove as an element of every criminal offense that an applicable statute of

limitations did not bar prosecution.’ Com. v. Bethlehem, 570 A.2d 563, 1989;

Accord. 18 Pa. C.S.A. § 103. [Footnote 3: 18 § 103 Definitions, ‘Elements of an

offense.’ Such conduct or such attendant circumstances or such result of conduct

as:… (4) negatives a defense under the statute of limitations.’]” (Id. at 17).

The Superior Court considered the issue on appeal as follows:

A statute of limitations defense is properly raised prior to trial in an

omnibus motion to dismiss the charges. Commonwealth v. Corban

Corp., 909 A.2d 406, 411 (Pa.Super. 2006), affirmed, 957 A.2d 274

(Pa. 2008), citing Commonwealth v. Rossetti, 863 A.2d 1185, 1190

(Pa.Super. 2004), appeal denied, 878 A.2d 864 (Pa. 2005);

Commonwealth v. Groff, 548 A.2d 1237, 1244 (Pa.Super. 1988). “The

Commonwealth bears the burden to establish that a crime as charged

was committed within the applicable statute of limitations period.”

Corban Corp., 909 A.2d at 411, citing Groff, 548 A.2d at 1248. A

defendant must raise a statute of limitations defense pretrial; otherwise,

the defense is waived. Id. at 1245 n.8, citing Commonwealth v. Darush,

459 A.2d 727, 730 n.4 (Pa. 1983).

If the statute of limitations defense poses a question of law, the

judge may decide the issue pretrial or at an appropriate time during

trial. If the statute of limitations poses a question of fact, the judge

should not decide the question but should present the question for

jury consideration.

Groff, 548 A.2d at 1248, n.8. “Where the date of discovery of criminal

acts is unrebutted, the issue of whether the statute of limitations for

prosecution has run is a question of law for the trial judge.” Corban

Corp., 909 A.2d at 410, citing Commonwealth v. Hoffman, 398 A.2d

658, 661 (Pa.Super. 1979).

Upon a review of the record, we find that appellant properly raised a

statute of limitations defense when he filed a pro se amended omnibus

pretrial motion on January 21, 2014, seeking dismissal of the following

charges due to the expiration of the statute of limitations: indecent

assault, indecent exposure, endangering the welfare of children, and

corruption of minors. Accordingly, appellant has sufficiently preserved

this issue for appellate review, and we shall review this issue on its

merits.

Appellant, citing 42 Pa.C.S.A. § 5552(a), avers that the Commonwealth

failed to initiate criminal proceedings against appellant within the

statutory two-year time period. Appellant’s reliance, however, is

misplaced. The Commonwealth charged appellant with four offenses

subject to the exceptions to the two-year statute of limitations found in

42 Pa.C.S.A. § 5552(c)(3). Subsection 5552(c)(3) provides, in relevant

part,

(3) Any sexual offense committed against a minor who is less than

18 years of age any time up to the later of the period of limitation

provided by law after the minor has reached 18 years of age or the

date the minor reaches 50 years of age....

42 Pa.C.S.A. § 5552(c)(3).

Appellant further avers that the Commonwealth failed to “allege any

statement in the Information as to any claimed tolling or an exception

to the statute of limitations ....” (Appellant's brief at 13.) Our supreme

court has held, however, that the Commonwealth is not required to

include any notice of tolling or exceptions to the statute of limitations

in the criminal information, so long as the defendant is not prejudiced.

Commonwealth v. Stockard, 413 A.2d 1088, 1092 (Pa. 1980).

Specifically, the court stated:

The fact that the Commonwealth did not allege in the [complaint]

that it would seek to toll the statute of limitations is of no

consequence [if] there is no prejudice to [defendant.] The

Commonwealth did inform [defendant] of the tolling of the statute

of limitations when the Commonwealth filed its answer to

[defendant's] motion to dismiss the complaint.... As long as a

defendant, some reasonable time before trial, is [apprised] that the

Commonwealth will seek to toll the statute of limitations, the due

process requirements of notice are met.

Id., quoted by Commonwealth v. Morrow, 682 A.2d 347, 349

(Pa.Super. 1996), appeal denied, 693 A.2d 587 (Pa. 1997). In Morrow,

similarly to the defendant in Stockard, the Commonwealth responded

to an omnibus pretrial motion seeking dismissal on the grounds of the

expiration of the statute of limitations with a written notice of intention

to toll the statute. Id. This court found that the defendant was not

prejudiced, as he was “adequately and timely informed of the

Commonwealth's intentions,” prior to trial.” Id. In Commonwealth v.

Russell, 938 A.2d 1082, 1088 (Pa.Super. 2007), appeal denied, 956

A.2d 434 (Pa. 2008), this court reaffirmed that the Commonwealth

satisfies the notice requirement so long as it notifies the defendant of

its intention to toll the statute of limitations at a reasonable time before

trial.

Here, appellant filed an amended omnibus pretrial motion on January

21, 2014. The Commonwealth subsequently filed a written notice of

tolling of the statute of limitations on February 24, 2014—over two

years before the start of trial on May 31, 2016. We, therefore, find that

the Commonwealth provided adequate written notice of its intent to toll

the statute of limitations within a reasonable time before trial.

Accordingly, appellant's first issue is without merit.

Commonwealth v. Corliss, 2017 WL 6196304, at *4–5.

Supreme Court precedent governing statutes of limitations recognizes that

“[i]n the first stage—before arrest or indictment, when the suspect remains at

liberty—statutes of limitations provide the primary protection against delay, with

the Due Process Clause as a safeguard against fundamentally unfair prosecutorial

conduct. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d

752 (1977); see id., at 795, n. 17, 97 S.Ct. 2044 (Due Process Clause may be

violated, for instance, by prosecutorial delay that is “tactical” or “reckless”

(internal quotation marks omitted)).” Betterman v. Montana, — U.S. —, 136 S.

Ct. 1609, 1613 (2016). “The purpose of a statute of limitations is to limit exposure

to criminal prosecution to a certain fixed period of time following the occurrence

of those acts the legislature has decided to punish by criminal sanctions. Such a

limitation is designed to protect individuals from having to defend themselves

against charges when the basic facts may have become obscured by the passage of

time and to minimize the danger of official punishment because of acts in the far-

distant past. Such a time limit may also have the salutary effect of encouraging law

enforcement officials promptly to investigate suspected criminal activity. For these

reasons and others, we have stated before ‘the principle that criminal limitations

statutes are ‘to be liberally interpreted in favor of repose,’ United States v.

Scharton, 285 U.S. 518, 522, 52 S.Ct. 416, 417, 76 L.Ed. 917 (1932).’ United

States v. Habig, 390 U.S. 222, 227, 88 S.Ct. 926, 929, 19 L.Ed.2d 1055 (1968).”

Toussie v. United States, 397 U.S. 112, 114–15 (1970). Significantly, the Supreme

Court has determined that “[a] statute-of-limitations defense does not call the

criminality of the defendant’s conduct into question, but rather reflects a policy

judgment by the legislature that the lapse of time may render criminal acts ill-

suited for prosecution. See, e.g., Toussie v. United States, 397 U.S. 112, 114–115,

90 S.Ct. 858, 25 L.Ed.2d 156 (1970).” Smith v. United States, 568 U.S. 106, 110–

12 (2013).

Corliss asserts that the state court erred in failing to consider the statute of

limitations as an element of the offenses to be presented to the jury. As noted

supra, a statute of limitations defense does not call the criminality of the

defendant’s conduct into question, but rather reflects a policy judgment by the

legislature that the lapse of time may render criminal acts ill-suited for prosecution.

Consequently, we find that the state courts’ conclusions concerning whether the

offenses were within statute of limitations issue were properly decided by the trial

court, and not presented to the jury for consideration, are not contrary to, or an

unreasonable application of, governing Supreme Court precedent.

He also contends that state court violated Alleyne v. United States, 570 U.S.

99, 107–08 (2013) in failing to present the statute of limitations to the jury. The

Alleyne Court opined as follows:

The touchstone for determining whether a fact must be found by a jury

beyond a reasonable doubt is whether the fact constitutes an “element”

or “ingredient” of the charged offense. United States v. O'Brien, 560

U.S. 218, ––––, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010); Apprendi,

supra, at 483, n. 10, 120 S.Ct. 2348; J. Archbold, Pleading and

Evidence in Criminal Cases 52 (5th Am. ed. 1846) (hereinafter

Archbold). In Apprendi, we held that a fact is by definition an element

of the offense and must be submitted to the jury if it increases the

punishment above what is otherwise legally prescribed. 530 U.S., at

483, n. 10, 120 S.Ct. 2348. While Harris declined to extend this

principle to facts increasing mandatory minimum sentences,

Apprendi’s definition of “elements” necessarily includes not only facts

that increase the ceiling, but also those that increase the floor. Both

kinds of facts alter the prescribed range of sentences to which a

defendant is exposed and do so in a manner that aggravates the

punishment. 530 U.S., at 483, n. 10, 120 S.Ct. 2348; Harris, supra, at

579, 122 S.Ct. 2406 (THOMAS, J., dissenting). Facts that increase the

mandatory minimum sentence are therefore elements and must be

submitted to the jury and found beyond a reasonable doubt.

Alleyne v. United States, 570 U.S. 99, 107–08, 133 S. Ct. 2151, 2158, 186 L. Ed.

2d 314 (2013).

Corliss’ argument lacks merit. The statute of limitations is not a fact that

increases the punishment above what is otherwise legally prescribed. As such, it

does not constitute an element that must be submitted to the jury and found beyond

a reasonable doubt.

2. Grounds 3, 4, and 5

In Grounds 3, 4, and 5, Corliss challenges the sufficiency of the evidence

adduced in support of the IDSI convictions, primarily focusing on the sexual

intercourse component of the convictions. He also contends that the trial court

“change[d] the evidence” to include penetration to permit instructing the jury on

sexual intercourse.3

The “clearly established Federal law” governing sufficiency of the evidence

claims is set forth in the United States Supreme Court’s decision in Jackson v.

Virginia, 443 U.S. 307 (1979). Under Jackson, evidence is sufficient to support a

3 In the state court proceedings, Corliss challenged the sufficiency of the evidence relating to the

IDSI and incest convictions. Here, he limits his challenge to whether the evidence is sufficient to

support the IDSI conviction.

conviction if, “after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Id. at 319. “Jackson leaves juries broad

discretion in deciding what inferences to draw from the evidence presented at trial,

requiring only that jurors ‘draw reasonable inferences from basic facts to ultimate

facts.’ ” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (quoting Jackson, 443 U.S.

at 319).

The sufficiency of the evidence supporting the IDSI convictions was raised

on direct appeal. The Superior Court set forth the following standard of review:

In reviewing the sufficiency of the evidence, we view all evidence

admitted at trial in the light most favorable to the Commonwealth, as

verdict winner, to see whether there is sufficient evidence to enable [the

fact finder] to find every element of the crime beyond a reasonable

doubt. This standard is equally applicable to cases where the evidence

is circumstantial rather than direct so long as the combination of the

evidence links the accused to the crime beyond a reasonable doubt.

Although a conviction must be based on “more than mere suspicion or

conjecture, the Commonwealth need not establish guilt to a

mathematical certainty.”

Moreover, when reviewing the sufficiency of the evidence, the Court

may not substitute its judgment for that of the fact finder; if the record

contains support for the convictions, they may not be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted), appeal denied, 89 A.3d 661 (Pa. 2014). The Commonwealth

may satisfy its burden of proving a defendant's guilt beyond a

reasonable doubt by using wholly circumstantial evidence.

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008), cert. denied,

556 U.S. 1106 (2009).

This court has also previously stated that the uncorroborated testimony

of a victim of a sexually based offense is sufficient to uphold a

conviction, so long as the testimony is believed by the trier-of-fact.

Commonwealth v. Trippett, 932 A.2d 188, 194 (Pa.Super. 2007), citing

Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa.Super. 2006). A

fact-finder is free to believe all, part, or none of the evidence, including

uncorroborated testimony, presented. Commonwealth v. Mosley, 114

A.3d 1072, 1087 (Pa.Super. 2015) (citations omitted), appeal denied,

166 A.3d 1215 (Pa. 2017). Therefore, how much credibility and weight

is given to the uncorroborated testimony is fully within the exclusive

purview of the fact-finder.

Commonwealth v. Corliss, No. 108 EDA 2017, 2017 WL 6196304, at *5 (Pa.

Super. Ct. Dec. 8, 2017). Clearly, the Superior Court applied the Pennsylvania

equivalent of the Jackson standard. See also Evans v. Court of Common Pleas,

Delaware Cnty., 959 F.2d 1227, 1233 (3d Cir. 1992) (noting that the test for

sufficiency of the evidence is the same under both Pennsylvania and federal law).

Because the Superior Court applied the correct legal standard, its adjudication

satisfies review under the “contrary to” clause of § 2254(d)(1). See, e.g., Williams,

529 U.S. at 405-06.

We next consider whether the trial court’s decision amounted to an

“unreasonable application” of Jackson.

Jackson claims face a high bar in federal habeas proceedings because

they are subject to two layers of judicial deference. First, on direct

appeal, “it is the responsibility of the jury ... to decide what conclusions

should be drawn from evidence admitted at trial. A reviewing court may

set aside the [trial court’s] verdict on the ground of insufficient evidence

only if no rational trier of fact could have agreed with the [trial court].”

Cavazos v. Smith, 565 U.S. 1 (2011). And second, on habeas review, “a

federal court may not overturn a state court decision rejecting a

sufficiency of the evidence challenge simply because the federal court

disagrees with the state court. The federal court instead may do so only

if the state court decision was ‘objectively unreasonable.’ ” Ibid.

(quoting Renico v. Lett, 559 U.S.766 (2010)).

- - -

[T]he only question under Jackson is whether [the state court’s] finding

was so insupportable as to fall below the threshold of bare rationality.

The state court of last review did not think so, and that determination

in turn is entitled to considerable deference under AEDPA, 28 U.S.C.

§ 2254(d).

Coleman, 566 U.S. at 651, 656.

Corliss’ sufficiency of the evidence claims mirror those raised on appeal.

(Docs. 21-22, 21-24). He breaks the claims into three arguments. Initially he

argues that he “was charged with crimes that possess an element of ‘sexual

intercourse’ though no evidence exists to support same.” (Doc. 2, p. 54). He next

contends that the state court erred in failing to dismiss the IDSI charges because

“the Pennsylvania General assembly and Pennsylvania Supreme Court anticipates

[sic] evidence of penile penetration of a vagina to support the element of ‘sexual

intercourse;’ however…no testimony of record exists to infer, suggest or point

directly to what can be construed as penile penetration of a vagina.” (Id. at 62).

And he asserts that, in contravention of the definition of sexual intercourse, “over

objection, as no claims of penile penetration of a vagina existed, the court sua

sponte directed the jury that ‘some form of oral contact with the genitalia of a

female victim is all that is required.’” (Id. at 69). He focuses on various

Pennsylvania General Assembly definitions contained in other statutes in support

of his arguments that the convictions were unconstitutionally obtained based on a

lack of evidentiary support. (Id. at 56, 57, 60, 63, 64, 69, 71, 72, 79).

In considering the claims, the Superior Court opined as follows: