# Com. v. Guarrasi, J. > Superior Court of Pennsylvania · November 15, 2016 URL: https://www.frixlaw.com/law-library/cases/4098572 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** November 15, 2016 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4098572 ## How later opinions describe it (automated extraction) - 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 - holding that false imprisonment is of a lesser magnitude than kidnapping - 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 - 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where the only eyewitness to the offenses underlying his conviction was unavailable ## Opinion text J-S64009-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JOSEPH PETER GUARRASI Appellant No.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 -2- J-S64009-19 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). -3- J-S64009-19 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. -4- J-S64009-19 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) -5- J-S64009-19 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.” -6- 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 - -- 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 Page 3 of 4 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 *= Page 4 of 4 -- -- 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4098572. Public record. Not legal advice.