Opinion
J-S64009-19 No. 3514 EDA 2015
11-15-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOSEPH PETER GUARRASI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Former Justice specially assigned to the Superior Court.
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. 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 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.
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 See Commonwealth v. Guarrasi , No. 1796 EDA 2005, unpublished memorandum, at 1-2 (Pa.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).
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 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, Appellant raises six issues for our review, reproduced here verbatim:
"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).
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,
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.
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?Appellant's Brief at 4-7.
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 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 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.
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. 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.
We deny Appellant's July 18, 2016 "Motion for Appellate Judicial Notice."
Order affirmed. Motion for appellate judicial notice denied.
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