Petition for Writ of Certiorari — Douglas Dean Welsh, Petitioner v. Bobbi Salamon, Superintendent, State Correctional Institution at Rockview, et al.

Supreme Court briefJun 16, 2025

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.21-5171

FILED

JUN 1 6 2025

OFFICE OF THE CLERK

SUPREME COURT, U.S..

IN THE

SUPREME COURT OF THE UNITED STATES

DOUGLAS DEAN WELSH

— PETITIONER

(Your Name)

vs.

MARK GARMAN

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES DISTRICT' COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

DOUGLAS DEAN WELSH #JY-1921

(Your Name)

1 Rockview Place, Box A.

(Address)

Bellefonte, Pa. 16823-0820

(City, State, Zip Code)

N/A___________________

’

(Phone Number)

QUESTION(S) PRESENTED

A. DID THE DISTRICT COURT ERROR IN RULING THAT PETITIONER'S

FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS, AND SIXTH AMENDMENT RIGHT TO

CONFRONTATION WAS NOT VIOLATED BY THE STATE COURT'S LIMITATION ON THE SCOPE OF

HIS CROSS EXAMINATION OF IHE VICTIM ALISHA DAUBERT ?

B. DID THE DISTRICT COURT ERROR IN RULING THAT IHE IMPOSITION OF

PETITIONER'S TWO LIFE SENTENCES PURSUANT TO A STATUTE DECLARED

UNCONSTITUTIONAL, DID NOT VIOLATE THE FIRST, EIGHT, AND FOURTEENTH AMENDMENTS

C. DID IHE DISTRICT COURT ERROR IN RULING THAT TRIAL COUNSEL WAS NOT

INEFFECTIVE FOR FAILING TO PROPERLY RAISE AND LITIGATE THE STALENESS OF THE

INFORMATION UPON WHICH THE SEARCH WARRANT WAS ISSUED FOR PETITIONER'S

RESDIENCE ?

LIST OF PARTIES

[ ] All parties appear in the caption of the case on the cover page.

All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

PENNSYLVANIA ATTORNEY GENERAL

ST: STRAWBERRY SQUARE 14th FLOOR

HARRISBURG, Pa. 17110

COLUMBIA COUNTY, DISTRICT ATTORNEY

COLUMBIA COUNTY COURTHOUSE

P.O. BOX 380

BLOOMSBURG, Pa. 17815.

TABLE OF CONTENTS

................

OPINIONS BELOW

JURISDICTION

.... ..................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

..................................................

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

DECISION OF THE THIRD CIRCUIT COURT OF APPEALS.

APPENDIX B

DECISION OF THE DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

APPENDIX C

DECISION OF THE SUPERIOR COURT OF PENNSYLVANIA (DIRECT APPEAL)

APPENDIX D

DECISION OF THE SUPERIOR COURT OF PENNSYLVANIA (PCRA APPEAL)

APPENDIX E

APPLICATION FOR SEARCH WARRANT AND AUTHORIZATION

APPENDIX F

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

ALLEYNE V. UNITED STATES, 570 U.S. 79 (2013)

APPRENDI V. NEW JERSEY, 530 U.S. 466 (2000)

CHAMBERS V. MISSISSIPPI, 410 U.S. 284 (1973)

CRANE V. KENTUCKY, 476 U.S. 683 (1986)

COMMONWEALTH V. BARNES,151 A.3d 121 (Pa. 2016)

COMMONWEALTH V. BROWN,' 431 A.2d 905 (1981)

COMMONWEALTH V. JONES, 668 A.2d 114 (Pa. 1995)

COMMONWEALTH V. MOHAMMAD, 992 A.2d 897 (Pa. Super. 2010)

COMMONWEALTH V. WOLFE,'140 A.3d 651 (Pa. .2016)

DAVIS V. ALASKA, 415 U.S. 308 (1974)

FLOWERS V. SACRAMENO COUNTY SHERIFF'S DEP’T,

421 F;3d 1027 (9th Cir. 2005)

HARRIS V. UNITED STATES, 536 U.S. 545 (2002)

(CONTINUED ON NEXT PAGE)

STATUTES AND RULES

42 Pa. C.S.A. §9718.2

42 Pa. C.S.A. §9718

OTHER

CASE

HICKS V. OKLAHOMA, 477 U.S. 343 (1980)

HOLLEY V. YERBOROUGH, 568 F.3d 1091 (9th Cir. 2009)

HOMES V. SOOTH CAROLINA, 547 U.S. 319 (2006)

LEWIS V. WILKINSON, 307 F.3d 423 (6th Cir. 2022)

LINDSEY V. WASHINGTON, 301 U.S. 397 (1937)

Mc-MILLIAN V. PENNSYLVANIA, 477 U.S. 79 (1986)

MICHIGAN V. LUCAS, 500 U.S. 145 (1971)

PEUGH V. UNITED STATES, 113 S.Ct. 2072 (2013)

U.S. V. SCHEFFER, 523 U.S. 303 (1998)

WASHINGTON V. TEXAS, 388 U.S. 14 (1976)

WHITE V. COPLAN, 399 F.3d 18 (1st. Cir.)

PAGE

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

XXX reported

, , at

C.A.

No. 24-1556

,____________________________

; or,

[ ] has been designated for publication but is not yet reported; or,

is unpublished.

•

The opinion of the United States district court appears at Appendix

the petition and is

*F] reported at CIVIL ACTI0N

1:2°-°329_____________ ; or,

[ ] has been designated for publication but is not yet reported; or,

[X^Ris unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

[ ] reported at

_________________________ :

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the

appears at Appendix

:______________ court

to the petition and is

[ ] reported at

i____________; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

JURISDICTION

For cases from federal courts:

The date_on.which The United States Court of Appeals decided my case

was APRIL 1, 2025

No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including (date) on

:__________(date)

in Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[ ] A timely petition for rehearing was thereafter denied on the following date:

, and a copy of the order deny

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including ____ :______ (date) on

;_____ (date) in

Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

UNITED STATES CONSTITUTION

ARTICLE I, SECTION 9:

The Migration or Importation of such Persons as any of the States

now existing shall think proper to admit, shall not be prohibited by Congress

prior to the Year one thousand eight hundred and eight, but a Tax or duty may

be imposed on such Importation, not exceeding ten dollars for each person.

The Privilege of Writ of Habeas Corpus shall not be suspended,

unless when in Cases of Rebellion or Invasion the public Safety may require

it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation,

or other direct, Tax shall be laid,

unless in

Proportion to the Census or Enumeration herein before directed to be taken.

No Preference shall be given by any Regulation of Commerce or

Revenue to the Ports of one State over those of another; nor shall Verssells

bound to, or from, one State, be obliged to enter, clear, or pay Duties in

another.

No Money shall be drawn from the Treasury, but in Consequence of

Appropriations made by law; and a regular Statement and Account of the

Receipts and Expenditures of all public Money shall be published from time to

time.

No Title of Nobility shall be granted by the United States: And no

Person holding any Office of Profit or Trust under them, shall, without the

Consent of the Congress, accept of any present, Emolument, Office, or Title,

of any kind whatsoever, from any King, Prince, or foreign State.

ARTICLE IV SECTION 5:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause, supported by

Gath or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.

ARTICLE VI, SECTION 2:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and cause of

the accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

ARTICLE VIII, SECTION 1:

Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.

ARTICLE XIV, SECTION 1:

All persons born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United States and the State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or inmunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

COMMONWEALTH OF PENNSYLVANIA STATUTES

42 Pa. C.S.A. Section 9718:

§9718 Sentence for offenses against infant persons.

(a) Mandatory sentence.

A person convicted of the following offenses when the victim

is less then 16 years of age shall be sentenced to a mandatory term of

imprisonment as follows:

18 Pa. C.S. § 2702(a)(1) and (4) (relating to aggravated

assault) - not less than two years.

18 Pa. C.S. § 3121(a)(1),(2),(3),(4) and (5) (relating to

rape) - not less then ten years.

18 Pa. C.S. § 3123 (relating to involuntary deviate sexual

intercourse) - not less than ten years.

18 Pa. C.S. § 3125(a)(1) through (6) (relating to aggravated

indecent assault) - not less than five years.

(2) A person convicted of the following offenses when the

victim is less than 13 years of age shall be sentenced to a mandatory term of

imprisonment as follows:

18 Pa. C.S. § 2502(c) (relating to murder) - not less than 15

years.

18 Pa. C.S. § 2702(a)(1) - not less than five years.

(3) a person convicted of the following offenses shall be

sentenced to a mandatory term of imprisonment as follows:

18 Pa. C.S. § 3121(c) and (d) - not less then ten years.

18 Pa. C.S. § 3125(a)(7) - not less than five years.

18 Pa. C.S. § 3125(b) - not less than ten years.

(b) Eligibility for parole. - Parole shall not be granted until the

minimum term of imprisonment has been served.

of prior convictions, any provision of this section that requires imposition

of a mandatory minimum sentence shall constitute an element enhancing the

underlying offense. Any enhancing element must be proven beyond a reasonable

doubt at trial on the underlying offenses and must by submitted to the fact

finder for deliberation together with the underlying offense. If the fact

finder finds the defendant guilty of the underlying offense, the fact-finder

shall also decide whether any enhancing element has been proven.

(c.l) Notice. - Notice to the defendant of the applicability of this

section shall be required prior to conviction.

(d) Authority of court in sentencing. - There shall be no authority

in any court to impose on an offender to which this section is applicable any

lesser sentence than provided for in subsection (a) or to place the offender

on probation or to suspend sentence. Nothing in this section shall prevent the

sentencing court from imposing a sentence greater than that provided in this

section. Sentencing guidelines promulgated by the Pennsylvania Commission on

Sentencing shall not supersede the mandatory sentences provided in this

section.

(e) Appeal by Commonwealth. - If the fact-finder has found any

enhancing element and a sentencing court imposes a sentence below the

mandatory minimum sentence, the Commonwealth shall have the right to appellate

review of the sentence. If the appellate court finds that the mandatory

sentencing provision was applicable, the court shall vacate the sentence and

remand the case for resentencing in accordance with that provision.

§ 9718.2. Sentences for sexual offenders:

(a) Mandatory sentence.

(1) Any person who is convicted in any court of this

Commonwealth of an offense set forth in section 9799.14 (relating to sexual

offenses and tier system), shall, if at the time of the commission of the

current offense the person had previously been convicted of an offense set

forth in section 9799.14 or an equivalent crime under the laws of this

Commonwealth in effect at the time of the conmission of that offense or an

equivalent crime in another jurisdiction, be sentenced to a minimum sentence

of at least 25 years of total confinement, notwithstanding any other provision

of this title or other statute to the contrary. Upon such conviction, the

court shall give the person oral and written notice of the penalties under

paragraph (2) for a third conviction. Failure to provide such notice shall not

render the offender ineligible to be sentenced under paragraph (2).

(2) Where the person had at the time of the conmission of the

current offense previously been convicted of two or more offenses arising from

separate criminal transactions set forth in section 9799.14 or equivalent

crimes under the laws of this Commonwealth in effect at the time of the

commission of the offense or equivalent crimes in another jurisdiction, the

person shall be sentenced to a term of life imprisonment, notwithstanding any

other provision of this title or other statute to the contrary. Proof that the

offender received notice of or otherwise knew or should have known of the

penalties under this paragraph shall not be required.

(b) Mandatory maximum. - An offender sentenced to a mandatory

minimum sentence under this section shall be sentenced to a maximum sentence

equal to twice the mandatory minimum sentence, notwithstanding 18 Pa.C.S. §

1103 (relating to sentence of imprisonment for felony) or any other provision

of this title or other statute to the contrary.

be an element of the crime, and notice thereof to the defendant shall not be

required prior to conviction, but reasonable notice of die Commonwealth's

intention to proceed under this section shall be provided after conviction and

before sentencing. The applicability of this section shall be determined at

sentencing. The sentencing court, prior to imposing sentence on an offender

under subsection (a), shall have a complete record of the previous convictions

of the offender, copies of which shall be furnished to the offender. If the

offender or the attorney for the Commonwealth contests the accuracy of the

record, the court shall schedule a hearing and direct the offender and the

attorney for the Conmonwealth to submit evidence regarding the previous

convictions

the

offender.

The

court

shall

then

determine,

preponderance of the evidence, the previous convictions of the offender and,

if this section is applicable, shall impose sentence in accordance with this

section. Should a previous conviction be vacated and an acquittal or final

discharge entered subsequent to imposition of sentence under this section, the

offender

shall have

the right

petition

the

sentencing court

for

reconsideration of sentence if this section would not have been applicable

except for the conviction which was vacated.

(d) Authority of the court in sentencing. - There shall be no

authority in any court to impose on an offender to which this section is

applicable any lesser sentence than provided for in subsection (a) and (b) or

to place the offender on probation or to suspend sentence. Nothing in this

section shall prevent the sentencing court from imposing a sentence greater

than that provided in this section. Sentencing guidelines promulgated by the

Pennsylvania Commission on Sentencing shall not supersede the mandatory

sentences provided in this section.

(e) Appeal by Commonwealth. - If a sentencing court shall refuse to

apply this section where applicable, the Commonwealth shall have the right to

appellate review of the action of the sentencing court. The appellate court

shall vacate the sentence and remand the case to the sentencing court for the

imposition of a sentence in accordance with this section if it finds that the

sentence was imposed in violation of this section.

42 Pa. C.S.A. § 9799.14:

§9799.14. Sexual offenses and tier system.

(a) Tier system established.

Sexual offenses shall be classified in

a three-tiered system composed of Tier I sexual offenses, Tier II sexual

offenses, and Tier III sexual offenses.

(b) Tier I sexual offenses.

The following offenses, or an attempt,

conspiracy or solicitation to commit any of the following offenses, shall be

classified as Tier I sexual offenses:

(1) 18 Pa. C.S. § 2902(b) (related to unlawful restraint).

(2) 18 Pa. C.S. § 2903(b) (relating to false imprisonment).

(3) 18 Pa. C.S. § 2904 (relating to interference with custody

of children), except in cases where the defendant is the child's parent,

guardian or other lawful custodian.

(4) 18 Pa. C.S. § 2910 (relating to luring a child into a

motor vehicle or structure).

(4.1)

Pa.

C.S.

3011(a)(1)

and

(2)

(relating

trafficking in individuals).

(4.2) 18 Pa. C.S. § 3013 (relating to patronizing a victim of

sexual servitude).

(5)

18 Pa.

C.S.

§ 3124.2(a) and (a.4)(l)

(relating to

institutional sexual assault).

(6) 18 Pa. C.S. § 3126(a)(1) (relating to indecent assault).

(7) (Reserved).

(8) 18 Pa. C.S. § 6301(a)(l)(ii) (related to corruption of

minors).

(9) 18 Pa. C.S. § 6312(d) ( relating to sexual abuse of

children).

(10) 18 Pa. C.S. § 7507.1. (relating to invasion of privacy).

(11) 18 U.S.C. § 1801 (relating to video voyeurism).

(12) 18 U.S.C. § 2252(a)(4) (relating to certain activities

relating to material involving the sexual exploitation of minors).

(13)

18 U.S.C.

2252A (relating to certain activities

relating to material constituting or containing child pornography).

(14) 18 U.S.C. § 2252B (relating to misleading domain names on

the Internet).

(15) 18 U.S.C. § 2252C (relating to misleading words or

digital images on the Internet).

U.S.C.

(16)

(17)

18 U.S.C.

2422(a)

(relating

coercion

and

enticement).

(relating to transportation of

§ 2423(b)

minors).

(18) 18 U.S.C. § 2423(c).

(19) 18 U.S.C. § 2424 (relating to filing factual statement

about alien individual).

(20)

U.S.C.

2425

(relating

to use of

interstate

facilities to transmit information about a minor).

(21) A comparable military offense or similar offense under

the laws of another jurisdiction or foreign country or under a former law of

this Commonwealth.

(22) [Repealed by amendment]

(23) A conviction for a sexual offense in another jurisdiction

or foreign country that is not set forth in this section, but nevertheless

requires registration under a sexual offender statute in the jurisdiction or

foreign country.

conspiracy or solicitation to commit any of the following offenses, shall be

classified as Tier II sexual offenses:

(1) 18 Pa. C.S § 3011(b).

(1.1) 18 Pa. C.S. § 3122.1(a)(2) (relating to statutory sexual

assault).

(1.2) 18 Pa. C.S. § 3124.2(a.2) and (a.3).

(1.3) 18 Pa. C.S. § 3126(a)(2), (3), (4), (5), (6) or (8).

(1.4) 18 Pa. C.S. § 3012 (relating to involuntary servitude)

as it relates to sexual servitude.

(2) 18 Pa. C.S. § 5902(b.l) (relating to prostitution and

related offenses).

(3) 18 Pa. C.S. § 5903(a)(3)(ii), (4)(ii), (5)(ii), or (6)

(relating to obscene and other sexual materials and performances).

(4) 18 Pa. C.S. § 6312(b) and (c).

(5) 19 Pa. C.S. § 6318 (related to unlawful contact with

minor).

(6) 18 Pa. C.S. § 6320 (relating to sexual exploitation of

children).

(7) 18 U.S.C. § 1591 (relating to sex trafficking of children

by force, fraud, or coercion).

(8) 18 U.S.C. § 2243 (relating to sexual abuse of a minor

ward).

(9) 18 U.S.C. § 2244 (relating t5o abusive sexual contact)

where the victim is 13 years or age or older but under 18 years of age.

(10) 18 U.S.C. § 2251 (relating to sexual exploitation of

children).

(11) 2251A (relating to selling or buying of children).

(12) 18 U.S.C. § 2252(a)(1), (2), or (3).

(13) 18 U.S.C. § 2260 (relating to production of sexually

explicit depictions of a minor for importation into the United States).

(14) 18 U.S.C. § 2421 (relating to transportation generally).

(15) 18 U.S.C. § 2422(b).

(16) 18 U.S.C. § 2423(a).

(17) A comparable military or similar offense under the laws

of another jurisdiction or foreign country or under former law of this

Commonwealth.

(18) [repealed by amendment]

(d) Tier III sexual offenses. The following offenses, or an attempt,

conspiracy or solicitation to commit any of the following offenses, shall be

classified as Tier III sexual offenses:

(1) 18 Pa. C.S. § 2901(a.l) (related to kidnapping).

(2) Pa. C.S. § 3121 (relating to rape).

(3) 18 Pa. C.S. § 3122.1(b) (relating to statutory sexual

assault).

(4) 18 Pa. C.S. § 3123 (relating to involuntary deviate sexual

intercourse).

(5) Pa. C.S. § 3124.1 (relating to sexual assault).

(6) 18 Pa. C.S. § 3124.2(a.l) and (a.4)(2).

(7) 18 Pa. C.S. § 3125 (relating to aggravated indecent

assault).

(8) 18 Pa. C.S. § 3126(a)(7).

(9) 18 Pa. C.S. § 4302(b) (relating to incest).

(10) 18 U.S.C. § 2241 (relating to aggravated sexual abuse).

(11) 18 U.S.C. § 2242 (relating to sexual abuse).

(12) 18 U.S.C. § 2244 where the victim is under 13 years of

age.

(13) A comparable military offense or similar offense under

the laws of another jurisdiction or country or under a former lav; of this

Commonwealth.

(14) [Repealed by amendment]

(15) (Reserved).

(16) IWo or more convictions of offenses listed as Tier I or

Tier II sexual offenses.

(17) One conviction of a sexually violent offense and one

conviction of a sexually violent offense as defined in section 9799.55

(relating to registration).

STATEMENT OF THE CASE

On August 30, 2007, the South Center Township Police Department,

conducted a search of Petitioner's (hereinafter Welsh) residence, in relation

warrant

alleging

crimes

committed

against

Alisha

Daubert

(hereinafter A.D.), and David Daubert Jr. (hereinafter D.D.) between January

2002 and March 25, 2004. (App. ®*) In October of 2007, Petitioner, and co

defendant Eugene Makara (hereinafter Makara) were arrested and Welsh, was

charged with a number of sex crimes, and related charges against A.D.. Makara,

was charged with a number of sex crimes and related charges against A.D. and

her brother D.D..

The Commonwealth filed it's Criminal Information against Welsh, on

November 20 , 2007. In the Information Welsh was charged with around (18)

counts alleged to have occurred in a continuing course of conduct between

January 1, 2002, through Augus t 29, 2007. *1 Some of these charges were

dismissed by the court after a state habeas corpus proceeding, and some of

which the Commonwealth withdrew prior to trial.

Makara, filed a motion to obtain certain C&Y records on February 29,

2008. After conference, and based upon agreement of counsels and Luzerne

County, Clinton County, and Columbia County, was directed to provide the court

with a copy of the requested records at which time the court would conduct an

in camera review. The subject records were inspected by the court and released

to all counsels.

Welsh,

and

Makara,

filed

Supplemental Omnibus Pretrial Motion.

Omnibus

Pretrial

Motion,

and

The initial hearing held on these

motions was September 10, 2008. Both defendants challenged the sufficiency of

the Commonwealth's evidence. A.D., D.D., and Sergeant Mark Fedder, testified

at this hearing.

A.D. was the first witness called by the Commonwealth. She stated

that she and her brother would often times stay at the residence of Welsh, and

Makara. She related that she had been touched by Gene and Dean. She also

related that Dean held Gene’s penis and tried to put it in her privets, her

vagina. A.D. in response to questioning related that she told her mom a lot of

times but she never believed her. She did indicate that her father believed

her, but later in her testimony she confirmed that her father was having

sexual intercourse with her. A.D. also indicated that she did not understand

what was happening to her until she was twelve (12) years old.

Makara's counsel pursued a line of questioning with A.D. about her

father

having

sexual

intercourse

with her.

A.D.A.

McDonald,

objected

indicating that it was outside the scope of direct examination. In response

Welsh's counsel indicated that it was relevant to motive and bias. Counsel of

Makara, also indicated that it was relevant for the purpose of determining the

actual perpetrator, of the crime. The trial court permitted the answer and

line of inquiry.

In Welsh's, defense counsel's cross examination of A.D. he inquired

if David Hons, had sexual intercourse or contact with A.D.

A.D.A. McDonald,

once again objected. The trial court stated for the record, "we will permit it

on the basis of motive, knowledge, and bias." Counsel was permitted to inquire

into A.D.'s sexual intercourse and sexual contact with David Hons, Stephin

Daubert, and Brian Daubert.

Makara is alleged to have sexually abused A.D. and D.D. in 2002

through 2004. He is alleged to have had sexual intercourse and caused the

minor child A.D. to nave oral sex with him during this time period. In

addition A.D.

alleges that the sexual intercourse and oral intercourse

occurred on trips to Florida in 2002, and 2003, and that whenever she had sex

with Makara, Welsh was present.

D.D.

testified that Makara,

had anal

intercourse with him. He testified that Makara, would place baby oil and aloe

vera on his penis before entering D.D.'s buttocks. In addition he claimed that

Makara, placed D.D.'s hand on his penis, and that Welsh, never touched or did

anything sexual to him.

At the conclusion of this hearing the trial court issued an order

granting a motion for suppression with respect to undergarments, permitting

counsel to raise any objection to the bathing suit or any other pieces of

clothing used during trial. The court further stated that it would rule on any

objections at that time as to relevance.

On September 19, 2008, after reviewing discovery related to the

search warrant,

and

application

for

search warrant,

counsel

filed

supplemental omnibus pretrial motion in which he raises the issue of the

staleness of the information supporting the search warrant for the first time.

While awaiting litigation of Welsh's staleness issue, on October 28, 2008,

counsel working on an alternative defense a hearing was held where the

Commonwealth and counsel reached an agreement regarding the items obtained

during the search that the Commonwealth would seek too admit at trial. *2

Upon motion by Makara, the trial court ordered Milestones, Kids

piece, Northeast Counselling and St. Michael's School, should provide defense

counsel and the District Attorney with all counselling and educational records

in their possession concerning A.D. and D.D. within fifteen days from the

trial court's order. The trial court further directed that counsels should not

distribute these records to their clients provided however that the subject

records could be distributed or disseminated to any expert engaging or

retained by the parties.

Kids Piece, filed a 14011011 for Reconsideration, of the court's order

for production of records. Having not received a hearing or ruling on the

motion for reconsideration, Kids Piece, filed an appeal with the Superior

Court of Pennsylvania, docketed at 2011 MDA 2008. On August 26, 2009, the

Superior Court vacated the trial court's order as to Kids Piece, and the

matter was remanded for further proceedings consistent with the court s

opinion. The trial court thereafter scheduled a hearing on the Kids Piece

records.

Upon motion by Makara, Judge Naus, recused himself. In addition,

Attorney Hugh Sumner, was appointed as guardian ad litem for A.D. and D.D. On

May 6, 2010, newly appointed Judge William Keiser, ordered and directed that

neither of the defendants not the Commonwealth nor anyone else who currently

had access to the counselling records would make any further distribution, or

disclosure of information that is contained in those records to any person or

entity except after appropriate hearing and stipulation and further court

order. This order applied to all of the counselling and educational records

that had been received pursuant to Judge Naus' order.

After review of the matter Judge Keiser, denied Welsh's and Makara's

request for Kids Piece, counselling records. The court thereafter ordered a

venue/venire hearing to be scheduled for June 23, 2010. At the hearing the

defense presented testimony from Professor Neil Sloane, concerning a pretrial

survey done regarding the Welsh and Makara case. On July 14, 2010, the trial

court denied Welsh and Makara's motion for change of venue without prejudice

that the matter could be raised at a time during jury selection. The court on

August

2010,

also denied both defendants

motion for

psychological

evaluation of each of the children for the purpose of determining competency.

The Commonwealth filed a Motion in Limine challenging Welsh, and

Makara's ability to question A.D. about sexual intercourse and sexual contact

with her father, cousin, and two (2) uncles. The court ordered that the

defense file a brief with there offers of proof. Ihe court ordered the

Commonwealth respond via brief. Ihe defense filed a motion challenging the

Commonwealth's request to admit prior bad acts under Pa. R.E. Rule 404 (b).

Ihe court granted the defense's motion but allowed the Commonwealth to

immediately amend. Ihe Commonwealth amended it's 404 (b) notice on record. Ihe

trial court found this offer was admissible for the purpose of intent and

common plain.

Ihe defense filed a number of motions as the trial approached.

Several of the motions namely a Motion for Prosecutor Misconduct, a Motion to

Dismiss, and a Motion for a Continuance, were filed concerning videotapes of

interviews with A.D. and D.D., by a member of Clinton County C&Y. Ihese

untimely submissions prevented the defense from securing a "taint" expert to

review this matter to determine whether the children were competent to testify

at trial. Ihe trial court denied the motions.

On the first day of trial the court granted the Commonwealth's

Motion in Limine and refused to allow the defense to question A.D., about

sexual intercourse and contact with her father, cousin, and two (2) uncles. In

addition after a lengthy hearing the court permitted the Commonwealth to offer

testimony of counsHors, police, and other individuals, who questioned or

received information from A.D. and D.D., concerning the alleged events subject

to the Commonwealth's criminal information.

After several days of trial on September 20,

2010,

the jury

convicted Welsh, of Aggravated Indecent Assault of a Child (18 Pa. C.S.A.

§3125 §§ (b)); Indecent Assault, Person Less Ihen 13 Years of Age (18 Pa.

C.S.A. §3126 §§ (a)(7)); Corruption of Minors (18 Pa. C.S.A. §6301 §§ (a)(1));

and Criminal Conspiracy Engaging - Rapa of a Child (18 Pa. C.S.A. §903 §§

(a)(1)).

Welsh filed a timely direst appeal to the Superior Court of

Pennsylvania captioned COMMONWEALTH OF PENNSYLVANIA V. DOUGLAS DEAN WELSH,

docketed at 519 MDA 2011. The Superior court affirmed Welsh's judgment of

sentence on August 8, 2012. Welsh then timely filed a Petition for Allowance

of Appeal with the Supreme Court of Pennsylvania captioned COMMONWEALTH OF

PENNSYLVANIA V. DOUGLAS DEAN WELSH, docketed at 211 MM 2012, which the court

denied on October 21, 2013.

On August 11, 2014, Welsh sent to be filed a timely Petition for

Post Conviction Collateral Relief (hereinafter PCRA) in the Court of Common

Pleas of Columbia County, Pennsylvania, captioned COMMONWEALTH OF PENNSYLVANIA

V. DOUGLAS DEAN WELSH, docketed at CP-19-CR-0000829-2007. The court dismissed

this petition as meritless on February 16, 2017, but did not file the

dismissal until February 21, 2017.

Welsh, timely filed an appeal to the Superior Court of Pennsylvania,

in response to the dismissal of his PCRA petition, captioned COMMONWEALTH OF

PENNSYLVANIA V. DOUGLAS DEAN WELSH, docketed at 1850 MDA 2018. On November 21,

2019, the Superior Court affirmed in part and vacated the underlying judgment

of sentence to the extent that it designated Welsh as a sexually violent

predator under Pennsylvania's Sex Offender Registration and Notification Act

(hereinafter

SORNA)

42 Pa.

§9799.10,9799.41,

C.S.A.

and remanded with

instructions to the trial court. On January 23, 2020, the trial court

corrected Welsh's sentence in accordance with the Superior Court's decision.

On February 11, 2020, Welsh timely sent his Federal Petition for

Writ of Habeas Corpus to by filed in the United States District Court for the

Middle District of Pennsylvania, captioned DOUGLAS DEAN WELSH V. MARK GARMAN,

docketed at 3:20-CV-0329. On March 1, 2024, Judge Mannion, denied Welsh's

Petition for Habeas Corpus, and ruled there was no basis for the issuance of a

Certificate of Appealability (hereinafter CQA). Welsh, filed a timely Notice

of Appeal to the Third Circuit Court of Appeals, captioned DOUGLAS DEAN WELSH

V. MARK GARMAN, et. al., docketed at 24-1556. On April 15, 2024, Welsh filed a

timely

Application

for

Certificate

Appealability

and

Incorporated

Memorandum of Law. sometime thereafter, the caption of this appeal was changed

to DOUGLAS DEAN WELSH V. SUPERINTENDENT ROCKVIEW SCI: ET AL. On April 1, 2025,

the Third Circuit Court denied Welsh's request for a CQA. This Petition for

Writ of Certiorari, follows.

*1 In the instant case the Court should note that although the

criminal information alleged the crimes charged occurred during a continuing

course of conduct from January 1, 2002, through August 29, 2007. The record of

the case establishes the Affidavit of Probable Cause attached to the Search

Warrant for Petitioner's property and residence alleged the crimes occurred

between 2002 and 2004 only. (App. E @ 1)

Moreover instantly in March of 2004 A.D. made the same

accusations that led to the present charges, to the Hazelton Police who

investigated and found the allegations to be unfounded and closed the case

with no charges filed. Actually, prior to these allegations Petitioner had no

contact with A.D., or D.D. for that matter (Petitioner was not tried for any

charges related to D.D. whatsoever), after Petitioner, Makara, and A.D.,

returned from a trip to Florida, in December of 2003 or January of 2004, and

had not seen either child again until they appeared in court in the instant

matter. Further, in early 2007 A.D. and D.D., were remover from their parents

and placed in foster care until at least 2011, where Petitioner, had no

contact with A.D. Thus, Petitioner had no contact with A.D. or D.D. for that

matter since 2004 and as such no continuing course of conduct from January 1,

2002 to August 29, 2007, could have occurred.

Also review of Children And Youth Services (hereinafter CYS)

interviews dated June 13, 2007, states that "

LAURA (A.D.'S MOTHER) EXPLAINED THAT ALISHA HAD TOLD THEM THAT THEY HAD BEEN

TOUCHING HER AND DAVID (A.D.'S FATHER) HAD DECIDED THAT HE NO LONGER WANTED

THE CHILDREN TO GO THERE. THIS CW ASKED LAURA IF THEY EVER LET THE CHILDREN GO

THERE AFTER ALISHA HAD TOLD THEM THAT. SHE STATED THAT THEY HAD NOT. THIS CW

ASKED LAURA HOW LONG AGO ALISHA HAD TOLD THIS TO THEM. LAURA STATED THAT IT

MUST HAVE BEEN A YEAR OR TWO AGO WHEN THEY STOPPED VISITING." (emphasis added)

and CYS interview dated June 26, 2007, states "THIS CW ASKED ALISHA WHEN ALL

OF THIS HAPPENED TO HER. SHE EXPLAINED THAT IT HAD BEEN A YEAR OR TWO AGO."

(emphasis added).

REASONS FOR GRANTING THE PETITION

DID

THE DISTRICT

COURT ERROR

IN RULING THAT PETITIONER'S

FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS, AND SIXTH AMENDMENT RIGHT TO

CONFRONTATION WAS NOT VIOLATED BY THE STATE COURT'S LIMITATION ON THE SCOPE OF

HIS CROSS EXAMINATION OF THE VICTIM ALISHA DAUBERY ?

Instantly in the District Court's Memorandum Dated March 1, 2024,

the court ruled: "We do not find Welsh to have established that the state

court's limitation of the scope of his cross examination of A.D. violated his

confrontation clause rights nor the state court's unreasonable applied Supreme

Court case law when it rejected this claim. Therefore, we do not find this

claim warranted habeas relief." Id. @ 17-18 Ex. B.

Welsh contends that the District Court erred in it's ruling. Where

it not only conflicts with the decisions of Appellate Courts, but also

conflicts with clearly established Supreme Court rulings. The Supreme Court

has established that the constitution guarantees criminal defendants

meaningful opportunity to present a complete defense. CRANE V. KENTUCKY, 476

U.S. 683, 690 (1986). This guarantee has it's roots in both the Due Process

Clause (CHAMBERS V. MISSISSIPPI, 410 U.S. 284,294 (1973)), and the right to

"have compulsory process for obtaining witnesses in his favor" as provided by

the Sixth Amendment. WASHINGTON V. TEXAS, 388 U.S. 14,23 (1967). A defendant's

right to due process in a criminal trial is, "in essence, the right to a fair

opportunity to defend against the states's accusations." CHAMBERS, @ 294.

Included within these guarantees is the right to cross examination (DAVIS V.

ALASKA,

415 U.S.

308,315-16

(1974)),

and to present relevent evidence.

MICHIGAN V. LUCAS, 500 U.S. 145 (1971).

In the instant case even though A.D. had already testified at the

Omnibus Pretrial Hearing On September 10, 2008, before Judge Scott Naus, to

having sexual intercourse regularly with her father, once with her uncle

Steve, (Recorded Record @ 73a, hereinafter R.R.)> about 20 times with another

uncle (R.R. @ 71a), and to having sexual contact with another relative

beginning sometime after she was (6) years of age. At trial Judge Kieser, then

held that A.D. could not be questioned about those alleged sexual assaults at

trial. (R.R. @ 67a) The trial court only allowed Welsh, to elicit testimony

from A.D. that she had been untruthful with forensic investigator Sherry

Moroz, when she told her that no one other then Welsh or Makara had touched

her. (Trial Testimony 9/16/10 @ 367-68) and permitted Sherry Moroz, to conform

this during her testimony. (Trial Testimony 9/17/10).

Welsh, contends this decision that A.D. could not be cross examined

about other acts of alleged criminal sexual intercourse she was involved in at

the same time she was claiming that she was having intercourse with Makara,

with Welsh present. Only allowing evidence to be elicited from A.D. that she

had been the victim of improper touching by individuals other then Makara, and

that she lied about it was wholly insufficient. Denying Welsh, his right to

both a fair trial pursuant to the Fourteenth Amendment, and right to present

evidence in defense of the charges against him pursuant to the Sixth, and

Fourteenth Amendments.

Although the District Court stated it's reasons for it's decision in

it's Memorandum of March 1, 2024, @ 10-17. (Ex. B) The Court did not make

mention of and totally overlooked the fact that this issue excluded testimony

that would/could have established Welsh's innocence. Where instantly both

Welsh and Makara's defense was that A.D. was lying and that neither had any

type of inappropriate contact with her. As such Welsh, contends that the

Court's decision denied him his ability to first and foremost present evidence

that would establish his actual innocence.

Where even taken in consideration with medical testimony that in

laymen terms provided that a person could have sexual intercourse a time or

two and still retain a hymen, and with time also heal and show no signs of

sexual

abuse.

Had

the above cited

evidence been

presented

trial

establishing that at the same time A.D. was claiming to have been having

sexual intercourse with Makara, with Welsh being present,

she was also

claiming to have had sexual intercourse at least (22) times with three (3)

different men starting at around (6) years of age. Before even adding to that

the number of times she claimed to have had intercourse with Makara, and her

father who she lived with and was regularly having intercourse with up until

she was removed from her parents home by G&Y in early 2007. Yet still having a

hymen and no signs of sexual abuse.

Although this Court, has observed that "State and federal rule

makers have broad latitude under the constitution to establish rules excluding

evidence from criminal trials." U.S. V. SCHEFFER, 523 U.S. 303,315 (1998).

"Well established rules of evidence permit trial judges to exclude evidence if

it's probative value is outweighed by certain other factors such as unfair

prejudice, confusion of the issue, or potential to mislead the jury." HOMES V.

SOUTH CAROLINA, 547 U.S. 319,326 (2006). Rules of this type "do not abridge an

accused's right to present a defense so long as they are not 'arbitrary' or

'disproportionate to the purpose they are designed to serve.*" SCHEFFER, @

308. Although this Court has also observed that "Exclusion of evidence

pursuant to state rules of evidence is unconstitutional only where it

"significantly undermined the fundamental elements of the accused defense.""

SCHEFFER, @ 315.

Ni imp mi is Courts of Appeals have also held exclusion of the type of

evidence

the

instant

case under

similar

circumstances

constitutes

violations of the due process and confrontation clause. See; SECRETARY, FLA.

DEP"T OF CORRECTIONS V. BAKER, 406 Fed. Appx. 416 (11th Cir. 2010); HOLLEY V.

YERBORQUGH, 568 F.3d 1091 (9th Cir.

2009); FLOWER V. SACRAMENTO COUNTY

SHERIFF'S DEP'T, 421 F.3d 1027 (9th Cir. 2005); WHITE V. COPLAN, 399 F.3d 18

(1st Cir.); and LEWIS V. WILKINSON, 307 F.3d 423 (6th Cir. 2022).

Welsh contends that under the circumstances of this case if the

evidence at issue had been admitted it would not have created confusion of the

issue, mislead the jury, or been an attack on A.D.'s reputation for chastity.

But only showed the jury that even though A.D.'s medical examination in 2007

or 2008, established she still had an intact hymen, and showed no signs of

sexual abuse. She was claiming to have been criminally sexually assaulted by

(4) other men not including Makara, with Welsh being present. Claiming to

having hard core sexual intercourse (not just being improperly touched), on a

regular basis with the father from around (6) years of age until being removed

from her parents in late 2006 or early 2007 by C&Y, and at least (22) other

times with three (3) other men, not including the number of times she claimed

Makara, had intercourse with her.

In fact Welsh, submits that the exclusion of this evidence actually

mislead the jury. By leading them to believe that A.D. was only improperly

touched by other individuals and it was possible for A.D. to show no signs of

sexual abuse, and still have a hymen. Where she was only claiming to have had

sexual intercourse with Makara, a few times. When in fact she was claiming to

have been having hard core sexual intercourse regularly since the age of (6)

with at least (5) men including Makara, and that no charges in any other case

were pursued.

Moreover, Welsh, avers that this evidence would show a pattern and

practice by A.D. of alleging that she was sexually abused by men to get what

she wanted. In this case at least one reason would be to stay in foster care

and not return to her parents care. Where she previously lived in deplorable

and unsafe conditions, and establish that it would be extremely unlikely if

not impossible for her to have suffered the years of sexual abuse by numerous

men as she claimed. Basically, being used as a sex toy regularly for years by

the men in her family. Yet still have an intact hymen, and show no signs of

the systemic sexual abuse she claimed to have suffered. The introduction of

this evidence would also not be precluded by the rape shield law of

Pennsylvania, or the federal rape shield law. As none of these acts would be

considered consentual due to A.D.'s age at the time and therefore, would not

run afoul of the purpose the rape shield laws were designed to serve.

Therefore, Welsh, avers that the District Court’s decision that

Welsh did not establish that the state court's limitation on the scope of his

cross examination of A.D. violated his Confrontation Clause Rights, nor that

the state court unreasonably applied Supreme Court case law when they rejected

his claim, is in error and contradicts this Court's case law, and Welsh seeks

relief.

B. DID THE DISTRICT COURT ERROR IN RULING THAT THE IMPOSITION OF

PETITIONER'S

TWO

LIFE

SENTENCES

PURSUANT

STATUTE

DECLARED

UNCONSTITUTIONAL, DID NOT VIOLATE THE FIRST, EIGHT, AND FOURTEENTH, AMENDMENTS

Instantly in the District Court's Memorandum of March 1, 2024, the

court ruled Welsh's two life sentences pursuant to 42 Pa. C.S.A. §9718.2,

which imposed a mandatory minimum sentence when there

a previous

convictions for sexual offenses, did not warrant habeas relief. Id. @ 21-25

(Ex. B). The court reasoned that Welsh was challenging his sentence pursuant

to this Court's decision in ALLEYNE V. UNITED STATES, 570 U.S. 79 (2013), and

that ALLEYNE, did not apply to his case. Where the two life sentences were

imposed pursuant to a mandatory minimum sentencing statute pertaining to prior

convictions.

Welsh avers that the district court erred in this ruling, where like the state

courts, the district court misunderstood Welsh's argument or ignored his

actual argument, and the district court's decision is contrary to this Court's

established case law. Welsh did not argue that his sentences were illegal

because of a direct result of this Court's decision in ALLEYNE. But as a

result of the fall out of ALLEYNE, or as an indirect result of ALLEYNE.

The common legal understanding of the term "ILLEGAL" is "AGAINST OR

NOT AUTHORIZED BY LAW". (BLACK"S LAW DICTIONARY ABRIDGED 5th Ed. @ 380). The

United States Constitution is "THE LAW OF THE LAND ..." (ARTICLE VI (2) U.S.

CONST.) In accordance with these well understood definitions both this Court,

and

the

Pennsylvania Supreme Court,

have consistently recognized that

mandatory sentences are illegal and unenforceable when not applied in

conformity with a valid statute or when applied in violation of the

constitution. See e.g. PEUGH V. UNITED STATES, 113 S.CT. 2072,2086 (2013) ("A

(guideline sentence) law can run afoul of the (Ex Post Facto) Clause even if

it dose not alter the statutory maxirnim punishment attached to the crime.");

HICKS V. OKLAHOMA, 447 U.S. 343,347 (1980) (State violated due process by not

ordering resentencing after mandatory sentence was imposed pursuant to a

statute declared invalid.); and LINDSEY V. WASHINGTON, 301 U.S. 397,401-02

(1937) (Ex Post Facto violation to apply new harsher mandatory sentencing

statute even though same sentence might have been imposed without it.)

Welsh, contends that his two life sentences in the instant case are

illegal because they are not applied in conformity with a valid statute. This

Court in ALT.EYNF., reconsidered and expressly overturned it’s prior precedent

in HARRIS V. UNITED STATES, 536 U.S. 545,567-68 (2002). (Expanding that

APPRENDI (APPRENDI V. NEW JERSEY, 530 U.S. 466 (2000) only prohibited judicial

power to extend the mandatory maximum sentence beyond what was authorized by

statute

and

reaffirming it's

pre APPRENDI,

decision

in McMILLIAN

PENNSYLVANIA, 477 U.S. 79 (1986)), and establishing "that any fact that, by

law increases the penalty for a crime must be treated as an element of the

offense,

submitted to a jury rather then a judge, and found beyond a

reasonable doubt." ALLEYNE @ 2163.

Ihe effects of this decision in the Commonwealth of Pennsylvania was

invalidation of a number

similiary patterned mandatory minimum

sentencing statutes as unconstitutional, including 42 Pa. C.S.A. § 9718, the

statute at issue in this case. See COMMONWEALTH V. WOLFE, 140 A.3d 651 (Pa.

2016) (Holding "that SECTION 9718 IS IRREMEDIABLY UNCONSTITUTIONAL ON IT'S

FACE NON-SERVERSABLE AND VOID.)

Welsh, avers that the fact that this statute (9718) had not yet been

declared unconstitutional at the time of his sentencing (February 22 2011)

prior to this Court's decision in ALLEYNE, and the Pennsylvania Supreme

Court's decision in WOLFE, is irrelevant in this context. Where the law of the

Commonwealth of Pennsylvania is clearly established and the Pennsylvania

court's,

have

continually

held

that:

"An

unconstitutional

statute

ineffective for any purpose as it's unconstitutionality dates from the time of

it's enactment, and not merely from the date of the decision holding it so."

(citation omitted) "If no statutory authority exists for a particular sentence

that sentence is illegal and subject to correction. An illegal sentence must

vacated.

(citation

omitted)

Because

...

the

statute

deemed

unconstitutional retroactive to it's inception, the court lacked authority to

convict and sentence appellant ...” COMMONWEALTH V. MOHAMMAD, 992 A.2d 897,903

(Pa. Super. 2010). Also see; COMMONWEALTH V. BARNES, 151 A.3d 121 (Pa. 2016);

and COMMONWEALTH V. BROWN, 431 A.2d 905 (1981).

As such welsh, contends that with the court's decision in ALLEYNE,

and WOLFE, declaring mandatory minimum sentencing statutes such as section

9718, unconstitutional and void as a whole. Combined with the well established

law of the Commonwealth of Pennsylvania that when a statute is declared

unconstitutional that unconstitutionality applies retroactively to the date of

the statutes inception. Thus, making it as if the statutory authority never

existed. There can be no doubt that his two life sentences pursuant to section

9718, are illegal. Where in the simplest terms section 9718 never existed and

the court lacked the authority to sentence him pursuant to a non-existing

statute.

Therefore, welsh contends that what the courts failed to take into

consideration in this case. Is that even though the ALLEYNE, decision did not

apply to mandatory minimum sentences pertaining to prior convictions. Once the

Pennsylvania Supreme Court in WOLFE, declared section 9718, unconstitutional

as a whole. It would not matter what subsection of 9718 Welsh, was sentenced

under whether pertaining to prior convictions or not the statute itself never

existed, and the two life sentences pursuant to section 9718 in the instant

sentence became illegal, and welsh seeks relief.

C. DID THE DISTRICT COURT ERROR IN RULING THAT TRIAL COUNSEL WAS NOT

INEFFECTIVE FOR FAILING TO PROPERLY RAISE AND LITIGATE THE STALENESS OF THE

INFORMATION UPON WHICH THE SEARCH WARRANT WAS ISSUED FOR PETITIONER'S

RESIDENCE ?

Instantly in the District Court’s Memorandum of March 1, 2024, (App.

B) the court relied on the state PCRA court, and Pennsylvania Superior Court,

opinions and held that counsel did in fact rase and litigate the staleness

issue, and therefore, the issue was meritless. Id. @ 59-61.

Welsh contends that the District Court erred in this ruling. Where

on direct review counsel only raised the issue of stalenes, after he himself

abandoned or waived the issue as decided by the trial court. See Trial Court

Opinion 6/21/12 @ 5. The Pennsylvania Superior Court then based on the trial

court's opinion concluded that trial counsel neither committed an error of law

not abused it's discretion in determining that the agreement between the

Commonwealth and (Welsh) counsel waived the issue of staleness. (Superior

Court Memorandum 8/8/12 @ 12 (App. C)).

Then when Welsh raised the Issue of counsel's ineffectiveness

concerning the abandoning or waiving the issue of staleness in his PCRA. The

PCRA court rejected the claim as meritless stating; "In the case at bar, the

victim reported the alleged abuse to authorities on June 11, 2007. Both

victims alleged the abuse occurred over the course of years, and the August

29, 2007, search warrant application and affidavit of probable cause reflects

this allegation, one of the victim's alleged the abuse would occur when she

stayed over the Petitioner's house, which was at least once a week. The

description of the alleged abuse within the search warrant application, and

affidavit of probable cause sufficiently established an alleged course of

conduct by Petitioner. The facts that some of the alleged abuse occurred years

before the search warrant was issued is of no moment due to the establishment

of an alleged course of conduct. After receiving the allegations of abuse from

the victims. Ihe authorities moved expeditiously to secure a search warrant.

The court finds the information underlying the issuance of the search warrant

was not stale, and thus the issue is not of arguable merit. Therefore,

Petitioner's trial counsel was not ineffective for failing to further develope

the staleness issue during Petitioner's case." (PCRA Court's Opinion and Order

2/21/17 @ 3-4). Ihe Superior Court then excepting the PCRA court's opinion on

the issue affirmed on that basis rejecting welsh's claim of ineffectiveness.

In reaching this conclusion the state courts relied on and cited to

COMMONWEALTH V. JONES, 668 A.2d 114,118 (Pa. 1995) holding "a showing that

criminal activity is likely to have continued up to the time of the issuance

of a warrant renders otherwise stale information viable." (PCRA court opinion

2/21/17 @ 3). However, Welsh, submits that the court's reliance on JONES, is

misplaced. Where the application for the search warrant at issue clearly

establishes that the dates of the alleged violations were limited to between

2002, and March 24, 2004. (App. E), and the Commonwealth applied for the

search warrant some (3) years and (5) months after the last alleged criminal

act occurred on August 29, 2007.

Moreover, the application for search warrant establishes that the

Commonwealth DID NOT ALLEGE anywhere that the ALLEGED CRIMINAL CONDUCT WAS

CONTINUING past 2004. (App. E) As such Welsh, submits that any course of

conduct alleged to have occurred between 2002 and 2004, would be stale

information that CANNOT provide probable cause in support of a warrant.

Without a shoeing that criminal activity is likely to have continued up to the

issuance of the warrant, in this case on August 29, 2007. Which is not alleged

and totally lacking in the present case contrary to the state court courts

belief.

Further, Welsh contends that under the circumstances of this case it

would be impossible for the court to find a continuing course of conduct

continuing until 2007. Where in the instant case although the criminal

information alleged the crimes charged occurred during a continuing course of

conduct from January 1, 2002, through August 29, 2007. The record of the case

establishes, and the affidavit of probable cause attached to the application

for search warrant for Welsh’s property and residence alleged the crimes

occurred between January 2002, through March 24, 2007 only (App. E), and just

because the Commonwealth changed the dates of the alleged criminal conduct on

the criminal information does not change what the dates were on the search

warrant.

Moreover,

allegations

that

instantly

led to

in March of

2004,

the present charges

A.D.

made

to Hazelton

these same

Police.

Who

investigated and found the allegations to be unfounded and closed the case

with no charges filed. Actually prior to the instant allegations Welsh had no

contact with A.D. or D.D. for that matter after Welsh, Makara, and A.D.,

returned from a trip to Florida in January of 2004, and had not seen either

child again until they appeared in court in the instant matter. Further, in

late 2006, or early 2007, A.D. and D.D. were removed from there parents and

placed in foster care until at least 2011, where Welsh, had no contact with

these children. Thus, Welsh, had no contact with these children since 2004,

and as such no continuing course of conduct from January 1, 2002, to August

29, 2007, could have occurred, and saying such by the Commonwealth is a total

lie to cover up their violation of Welsh's Constitutional rights.

Also review of exhibit b., in Welsh's PCRA appeal brief to the

Superior Court in 2019, will show a Children and Youth Services interview

dated June 13, 2007, that states: "LAURA (A.D.'S MOTHER) EXPLAINED THAT ALISHA

HAD TOLD THEM THAT THEY HAD BEEN TOUCHING HER AND DAVID (A.D.'S FATHER) HAD

DECIDED THAI HE NO LONGER WANTED THE CHILDREN TO GO THERE. THIS CW ASKED LAURA

IF THEY EVER LET THE CHILDREN GO THERE AFTER ALISHA HAD TOLD THEM THAT. SHE

STATED THAT THEY HAD NOT. THIS CW ASKED LAURA HOW LONG AGO ALISHA HAD TOLD

THIS TO THEM. LAURA STATED THAT IT MUST HAVE BEEN A YEAR OR TWO AGO WHEN THEY

STOPPED VISITING." (emphasis added), and the GScY interview dated June 26,

2007,

states "THIS CW ASKED ALISHA WHEN ALL THIS HAPPENED TO HER, SHE

EXPLAINED THAT IT HAD BEEN A YEAR OR TWO AGO, (emphasis added). Welsh avers

this would more then establish if one goes by these statements alone that he

had not seen or had contact with A.D. since at least 2005, two (2) years prior

to the search of his property.

Further, Welsh avers that a conscience reading of the search warrant

will show that A.D.'s statement was talking about a prior course of conduct,

not a continuing course of conduct. Thus, Welsh, submits that the state

courts' reasoning for finding the issue meritless is totally contrary to the

fact and evidence of the case and totally erroneous, and only done to cover up

the Commonwealth's violation of Welsh's constitutional rights.

As such Welsh, avers that with no continuing course of conduct from

2002 to 2007, the issue of counsel's waiving of the staleness issue of the

search warrant was not meritless, and ineffective assistance of counsel, and

Welsh seeks relief.

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