Com. v. Bent, J.

• Court: Superior Court of Pennsylvania
• Decided: December 11, 2024
• Docket: 271 MDA 2024
• Status: Unpublished

Opinion

J-S35045-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH FRANCESCO BENT : : Appellant : No. 271 MDA 2024

Appeal from the PCRA Order Entered February 1, 2024 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0002499-2018

BEFORE: PANELLA, P.J.E., MURRAY, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: DECEMBER 11, 2024

Appellant, Joseph Francesco Bent, appeals pro se from the order entered

in the York County Court of Common Pleas, which denied his first petition filed

under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546.

We affirm in part, and vacate and remand in part.

In its opinion denying relief, the PCRA court set forth the relevant facts

and procedural history of this case as follows:

[Appellant] was found guilty of one count of Rape by Forcible Compulsion, one count of Involuntary Deviate Sexual Intercourse by Forcible Compulsion, one count of Sexual Assault, one count of Aggravated Indecent Assault, and one count of Indecent Assault following a three-day jury trial from March 11 through March 13, 2022, before the, now retired, Honorable Judge Craig T. Trebilcock[, during which Appellant had represented himself at trial]. [Appellant] was sentenced to an aggregate term of 14½ years to 29 years in a State Correctional Institution on June 22, 2020. A post- sentence motion requesting reconsideration of [Appellant’s] sentence was filed on June 30, 2020, and was subsequently J-S35045-24

granted in part (finding that count 3 merge[d] with count 2 for sentencing) and denied in part on August 19, 2020. Thereafter, a Notice of Appeal was filed by [Appellant] on September 17, 2020. In an Order dated November 9, 2020, the Superior Court ordered the trial court to conduct an on- the-record inquiry as to whether [Appellant] wished to proceed pro se. On December 4, 2020, following a Grazier [1] hearing, Attorney Snyder was removed as appellate counsel for [Appellant] but was ordered to remain as stand-by counsel. On December 22, 2020, [Appellant] made a motion for bail pending appeal which was denied by Judge Trebilcock by Order dated January 11, 2021, due to the court’s determination that [Appellant] remained a threat to society.

Judge Trebilcock then filed a Pa.R.A.P. 1925(a) [opinion] requesting that [Appellant’s] claim be granted on the issue of an ex post facto probationary punishment and denied on all other grounds, on February 13, 2021. On June 22, 2021, the Superior Court affirmed [Appellant’s] convictions but vacated his sentence in part due to the sentence constituting an illegal ex post facto violation. [Appellant] then filed a petition for allowance of appeal with the Supreme Court on August 13, 2021[, which he later withdrew before the Court ruled on it]. [Appellant] then filed a [PCRA petition] on September [9], 2021[, by virtue of the prisoner mailbox rule, which was docketed on September 14, 2021]. A PCRA hearing was scheduled for December 17, 2021, but was continued generally due to Defense Counsel’s inability to amend the PCRA Petition.

On the record at the December 17th hearing, counsel for [Appellant], Attorney Charles Hobbs, placed on the record that [Appellant] had raised three claims in his PCRA petition, and that counsel had determined that two of the three claims were without merit. Attorney Hobbs then sought the advice of the court as to how to proceed with the case, as [Appellant] did not grant Attorney Hobbs permission to amend the petition to withdraw the meritless claims. Judge Trebilcock then asked [Appellant] if he wished to proceed on his claims at that hearing, which [Appellant] indicated he ____________________________________________

1 See Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).

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did. However, [Appellant] then objected to appearing via Zoom for his PCRA hearing, at which point the court discontinued the hearing and indicated that it would be rescheduled in the future before [a new jurist], as Judge Trebilcock was retiring in early January 2022.

Thereafter, on December 19, 2021, a pro se Motion to Amend his PCRA petition was docketed. A hearing was then scheduled for March 18, 2022. On January 27, 2022, [Appellant] filed an Amended Brief for Appellant’s PCRA. On March 15, 2022, the Commonwealth filed a Motion to Dismiss [Appellant’s PCRA petition] based on [Appellant’s] refusal to allow PCRA Counsel to amend his PCRA Petition and his failure to conform to the requirements of the Pennsylvania Rules of Criminal Procedure. At the PCRA hearing on March 18, 2022, this [c]ourt granted the Commonwealth’s motion to dismiss, and ordered [Appellant] to file an amended petition as it related to [a sentencing issue concerning calculation of Appellant’s prior record score]. Additionally, this [c]ourt ordered that, within five days, Attorney Hobbs send a copy of any records as requested by [Appellant]. Attorney Hobbs filed a Notice of Compliance with Court Order on March 21, 2022, and his representation ended on that date.

[Appellant] thereafter filed an Amended PCRA petition on March 25, 2022; however, this Amended Petition was mistakenly docketed as Case Correspondence. On April 20, 2022, the Commonwealth filed a Renewed Motion to Dismiss [Appellant’s PCRA petition] on the grounds that [Appellant] failed to file an Amended Petition within 30 days, as ordered by the court. Unfortunately, due to the clerical error with [Appellant’s] petition being docketed as Case Correspondence, this [c]ourt granted the Commonwealth’s Motion to Dismiss on April 25, 2022. [Appellant’s] Amended PCRA Petition was then properly docketed as an Amended Petition on May 9, 2022. Additionally, on May 9, 2022, [Appellant] filed a Motion to Reconsider the [c]ourt’s Order granting the Commonwealth’s Motion to Dismiss. This [c]ourt then dismissed [Appellant’s] petition and denied [Appellant’s] Motion for Reconsideration on May 13, 2022.

On September 1, 2022, [Appellant] filed a Notice of Appeal with the Superior Court. On September 20, 2022, the

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Superior Court indicated to [Appellant] that the Notice of Appeal was improperly filed and should have been filed with the [PCRA] court. Thereafter, on October 17, 2022, [Appellant] filed a renewed Notice of Appeal with this [c]ourt. This [c]ourt then filed a Pa.R.A.P. 1925(a) Opinion on November 30, 2022. We note that this 1925(a) Opinion was written without a 1925(b) statement from [Appellant], and this this was done in error on the part of this [c]ourt. On August 9, 2023, the Superior Court entered an Order requiring this [c]ourt to rule on [Appellant’s] Amended PCRA Petition of March 2022. The Superior Court then relinquished appellate jurisdiction. [See Commonwealth v. Bent, No. 1491 MDA 2022 (Pa.Super. filed Aug. 9, 2023) (unpublished memorandum)]. [Appellant] then filed a Motion for Bail on August 21, 2023, which this [c]ourt denied on August 29, 2023. [Appellant] then filed a Motion for Reconsideration of Bail on September 14, 2023, which this [c]ourt denied due to lack of pending appeal on October 2, 2023.

Due to [Appellant] raising Ineffective Assistance of Counsel as a claim in his initial PCRA Petition, this [c]ourt appointed PCRA counsel, Attorney Brandy Hoke, Esquire, to represent [Appellant] on October 3, 2023[, following the Superior Court’s remand]. On October 29, 2023, Attorney Hoke filed a Motion to Withdraw as Counsel citing that she had attempted to contact [Appellant] regarding this matter and that [Appellant] indicated that he did not want counsel to represent him. This [c]ourt then scheduled a hearing on Attorney Hoke’s motion to withdraw. A hearing was held on November 28, 2023, during which time 1) Attorney Hoke’s motion to withdraw was granted, 2) it was ordered that [Appellant] would have 14 days to make any changes to the active PCRA petition, and 3) it was further ordered that the Commonwealth would have an additional 14 days to respond to the petition.

Thereafter, [Appellant] filed a Motion to Dismiss All Charges pursuant to Pa.R.Crim.P. 600 on December 1, 2023, and Amended PCRA on December 8, 2023, and a second Motion to Dismiss All Charges on December 19, 2023. Additionally, on December 6, 2023, Attorney Hoke filed a Motion for Payment of Counsel Fees, which this [c]ourt granted on December 11, 2023; in response, [Appellant] filed Case

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Correspondence which this [c]ourt reads as a “Motion of Awareness,” in which [Appellant] requested clarification as to whom Attorney Hoke represented.

(PCRA Court Opinion, filed 2/1/24, at 1-6) (internal citations omitted). See

also id. at 7-16 (providing detailed recitation of evidence adduced at trial).

The court denied PCRA relief on February 1, 2024.2 Appellant timely filed a

notice of appeal on February 21, 2024. That same day, the court ordered

Appellant to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b), and Appellant complied.

On appeal, Appellant raises ten issues for our review, alleging: (1) the

trial judge should have recused; (2) a violation of Appellant’s rights under the

Confrontation Clause; (3) a violation of Appellant’s right to counsel; (4)

ineffective assistance of counsel; (5) after-discovered evidence; (6) judicial

misconduct; (7) PCRA court error; (8) violations of Appellant’s 5th, 6th, 8th,

and 14th Amendment rights; (9) denial of Appellant’s right to self-

representation; and (10) that the courts and officials involved in this case

have created a “cover up.”3

____________________________________________

2 After filing the notice of appeal, Appellant also filed a motion for reconsideration. The court denied the motion for reconsideration on February 29, 2024, based on the pending appeal. Moreover, the court noted that it would see no reason to alter or amend its reasoning denying PCRA relief on February 1, 2024, in any event.

3 Appellant’s brief omits a statement of questions presented in violation of Pa.R.A.P. 2116. Nevertheless, we glean these issues from the summary of the argument section of Appellant’s brief and the argument section itself. (Footnote Continued Next Page)

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After a thorough review of the record, the briefs of the parties, and the

applicable law, we conclude that the PCRA court’s opinion properly disposes

of the majority of Appellant’s issues. (See PCRA Court Opinion, filed 2/1/24,

at 21-28)4 (finding: (A) Appellant argues that Commonwealth violated his

right to confrontation by failing to present “critical witnesses” at trial, including

Victim’s boyfriend and laboratory technician who performed Victim’s

bloodwork; nevertheless, Appellant’s claim is waived for purposes of PCRA

under 42 Pa.C.S.A. § 9544(b), for failure to raise this issue in earlier

proceedings;5 (B) although Appellant argues that his right to counsel was

violated when court removed trial counsel prior to trial, court removed trial

counsel at Appellant’s request; additionally, Appellant failed to raise this

issue in earlier proceedings, so it is waived under Section 9544(b); (C)6

Although Appellant’s brief on appeal, which is handwritten and difficult to read at times, fails to comply with some other briefing requirements, we will address Appellant’s claims as best we can discern them, as the PCRA court was able to analyze these issues in its opinion.

4 We note that the PCRA court evaluates Appellant’s claims in an order different than Appellant presents them in his summary of the argument section as outlined supra. We will summarize the court’s findings in the order presented in the PCRA court’s opinion.

5 See 42 Pa.C.S.A. § 9544(b) (stating issue is waived for purposes of PCRA if

petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in prior state postconviction proceeding).

6 The PCRA court addresses two claims of ineffectiveness in this section. One of Appellant’s claims is that trial counsel was ineffective in failing to object to calculation of Appellant’s prior record score. The PCRA court concludes that (Footnote Continued Next Page)

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Appellant complains that original PCRA counsel, Attorney Hobbs, was

ineffective in filing “no merit” letter in response to Appellant’s pro se PCRA

petition; as relevant background, Attorney Hobbs had informed court that two

of three claims raised in Appellant’s pro se PCRA petition lacked merit but that

Appellant did not want counsel to amend petition to exclude those frivolous

claims; Attorney Hobbs then sought guidance from court, and court ultimately

permitted Appellant to proceed pro se with claims that counsel had deemed

frivolous; thus, counsel’s actions in seeking to file “no-merit” letter concerning

claims counsel deemed frivolous was reasonable under circumstances;

moreover, Appellant did not suffer prejudice where court permitted him to

move forward with those claims pro se;7 (D) Appellant claims that

Commonwealth failed to turn over prior to trial statement of Victim’s boyfriend

concerning Victim’s alcohol intake on day of crimes; nevertheless, Appellant

Appellant failed to suffer prejudice in connection with this claim, and that the claim is waived in any event. (See PCRA Court Opinion at 22-23). As discussed infra, we disagree with this section of the PCRA court’s analysis.

7 In our prior disposition remanding this case, this Court noted that while PCRA

counsel’s actions were well-intended, it is PCRA counsel’s duty to either (1) amend a defective PCRA petition to raise claims that counsel deems contain sufficient arguable merit; or (2) certify that no meritorious issues exist. We further noted that this Court has rejected as improper partial no-merit briefs such as the one in this case in which counsel argues against his client as to a fraction of the claims raised. See Bent, supra at 6 n.4.

Notwithstanding these procedural irregularities, we agree with the PCRA court that Appellant’s claims of PCRA counsel’s ineffectiveness on this ground merit no relief under the circumstances present here.

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sought to use this evidence solely to impeach credibility of Victim; thus,

Appellant cannot succeed on claim of after-discovered evidence under PCRA;

(E) regarding Appellant’s claim of judicial misconduct, although Appellant

claims that trial judge used “n-word” during sentencing, trial judge was only

referring to statement made by Appellant, who previously alleged that prior

counsel had called him “n-word”; court ultimately found Appellant’s testimony

incredible that prior counsel had called Appellant “n-word”; (F) Appellant

claims that court violated his rights in several respects by granting

Commonwealth’s motion to dismiss his PCRA petition in 2022; importantly,

these issues are reasons for which this case was remanded by Superior Court

in 2023 (see Bent, supra); thus, they have been previously litigated

pursuant to 42 Pa.C.S.A. § 9544(a);8 (G) Appellant did not adequately

develop his claims of constitutional violations under 5th, 6th, 8th, and 14th

Amendments; because Appellant’s claims are wholly conclusory and lacking in

factual specificity, this issue is waived for purposes of PCRA; (H) Appellant

did not suffer prejudice when court appointed new PCRA counsel in 2023

following Superior Court’s remand decision; court appointed counsel due to

previous issues regarding Appellant’s waiver of counsel and pro se

8 See 42 Pa.C.S.A. § 9544(a) (stating that for purposes of PCRA, issue has

been previously litigated if highest appellate court in which petitioner could have had review as matter of right ruled on merits of issue; or it has been raised and decided in proceeding collaterally attacking conviction or sentence).

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representation; appointment of new counsel was safeguard to protect

Appellant’s PCRA rights moving forward;9 (I) Appellant did not develop

argument regarding his recusal claim in PCRA petition; thus, issue is without

merit; and (J) regarding Appellant’s claim of “cover up,” no relief is due for

what is effectively Appellant’s assertion of innocence wherein Appellant opines

that “cover up” must have occurred because Appellant is actually innocent).

Accordingly, we affirm on the basis of the PCRA court’s opinion with regard to

the above issues.

Nevertheless, Appellant’s fourth issue presented in his summary of the

argument section alleges that counsel was ineffective for failing to object to

calculation of Appellant’s prior record score. As previously mentioned in

footnote 5, supra, the PCRA court addressed this claim in Section (C) of the

court’s opinion, and decided it merited no relief. Significantly, however, in

this Court’s prior decision remanding this case, we observed that “PCRA

counsel indicated [at the December 17, 2021 hearing before the PCRA court]

that sentencing counsel had acknowledged the error [regarding Appellant’s

prior record score], and that the Commonwealth stipulated that Appellant’s

prior record score was zero, not one, at the time he was sentenced.” See

Bent, supra at 3 n.2 (citing N.T. PCRA Hearing, 12/17/21, at 3). Ultimately,

9 Following the court’s appointment of counsel in 2023, Appellant ultimately

sought to proceed pro se, which the court permitted following a hearing on November 28, 2023.

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however, due to Appellant’s subsequent requests to proceed pro se and

numerous filings, that agreement to correct Appellant’s prior record score

never came to fruition. The Commonwealth now agrees that this Court should

remand the matter “only to address the previously agreed to issue of

resentencing to [correct the] Prior Record score. An agreement that the

Commonwealth had reached with [Appellant] and his PCRA counsel, Attorney

Hobbs in 2022.” (Commonwealth’s Brief at 31) (emphasis in original). In

light of the Commonwealth’s prior stipulation and representations on appeal,

and in the interests of justice, we vacate and remand for resentencing utilizing

Appellant’s corrected prior record score of zero. Accordingly, we affirm in

part, and vacate and remand for resentencing consistent with this decision.

Order affirmed in part. Judgment of sentence vacated. Case remanded

for further proceedings consistent with this memorandum. Jurisdiction is

relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 12/11/2024

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IN THE COURT OF COMMON PLEAS FOR YORK COUNT'', PENNSYLVANIA. CRIMINAL DIVISION RECEIVED COMMONWEALTH OF By Clerk of Courts at 3:89 pm, Feb 09, 2024 PENNSYLVANIA NO,: CP-67-CR-0002499-2018 V.

JOSEPH FR.ANCESSCO BENT

ORDER AND OP.1NION. IN SUPPORT OF ORDER

AND NOW, this + day of February 2024, the Court has before it the

Superior Court's Order of August 9, 2023. Pursuant to the Superior Court's Order,

this Court: was to review the Defendant's pro se Amended Post-Conviction Relief

Act Petition of March 25, 2022. Following astatus hearing in this case on

November 28, 2023, this Court granted the Defendant an opportunity to submit a

final Amended Petition for Post-Conviction Collateral Relief. The Defendant filed

an Amended Petition - b .h- Dedember.8, 2023. TJpon review of the record in this

matter, we hereby DENY relief under the Past-Conviction Relief Act.

I. Procedu.ral History

The Defendant was :found guilty of one count of Nape by Forcible Compulsion',

one count of Involuntary Deviate Sexual Intercourse by Forcible Compulsion', one

count of Sexual Assault'., one count of Aggravated Indecent Assault 4,and one

18 Pa.C.S.A. 3121(x)(1) . z18 Pa.C.S.A. 3123(a)(1) 3 18 Pa.C.S.A. 3'124.1

418 Pa.C.S.A. 312,5(x)(1.)

1 count ofIndecent Assaults following athree-day jury trial from March 11 through

March 13, 2020, before the, now retired, Honorable Judge Craig T. Trebilcock. The

Defendant was sentenced to an aggregate term of 14 1 /2years to 29 years in aMate

Correctional Institution on June 22; 2020, A post- sentence motion requesting

reconsideration of the'Def'endant's sentence was filed on June 30, 2020, and was

subsequently granted in part (finding that count 3merges with count 2for

sentencing) and denied: in part on August 19, 2020. Thereafl:er, aNotice of Appeal

was filed by the Defendant on September 17, 2020.1n an Order dated November 9,

2020, the Superior Court ordered the , trial court to conduct an on-the-record inquiry

as to whether the Defendant wished to proceed pro se. On December 4, 2020,

following aGra i& hearing, Attorney Snyder was removed as appellate counsel

for Defendant but was ordered to remain as standby counsel, On December 22,

2020, Defendant made amotion far bail pending appeal which was denied by

Judge Trebilcock by Order dated January 11, 2021, due to the court's determination

that Defendant remained athreat-to society.

Judge Trebilcock then filed aPa.RA.P. 1925(x) requesting that Defendant's

claim. be granted on the issue bf expostfacto probationary pimislunent and denied

on all other grounds, on Febmary 13, 2021. On June 22, 2021, the Superior Court

s18 Pa,C,S,A, 3126(a)(1)

2 affinned the Defendant's convictions but vacated his sentence in part due to the

sentence constituting an illegal ex post facto violation. Defendant then filed a

petition for allowance.of appeal with the Supreme Court of Pennsylvania on July

22, x,021. Shortly thereafter, Defendant filed aPraecipe for Discontinuance with

the Supreme Court on August 13, 2021. The Defendant then 'filed aPetition for

Post- Conviction Relief on September 14, 2021. A PC.RA. hearing was scheduled for

December 17, 2021, but was continued generally due to Defense Counsel's

inability to amend the PCRA Petition,

On the record at the December 17` 1hearing, counsel for the Defendant,

Attorney Charles :Hobbs, placed on the record that the Defendant had raised three

claims in his ,PCR.A petition, and that counsel had deter n.ined that two of the three

claims were without merit. Xote•x of Ranscript, Deceynber 17, 2021, page 4.

Attorney .Hobbs then sought the advice of the court as to how to proceed with the

case, as the Defendant did not grant Attorney Hobbs permission to ajuend the

petition to withdraw the:m.eritless claims, Id. Judge Trebilcock then asked the

Defendant if he wished to proceed on his claims at that hearing, which the

Defendant indicated he did. Id at 5. However, the Defendant then objected to

appearing via Zoom for his PCRA hearing, at which point. the court discontinued

the hearing and indicated that -it ,would be rescheduled in the :Future before this

Court, as Judge Trebilcock was retiring in early January 2022, Id at 6.

3 Thereafter, on December 19, 2021, apro se Motion to Amend his PCRA

petition was docketed. A hearing was then scheduled for March 18, 2022. On

January 27, 2022, the Defendant filed an Amended Brief for Appellant's PCIU.

On March 15, 2022, the Commonwealth filed aMotion to Dismiss Defendant's

Petition for Post-Conviction Relief based on the Defendant's refusal to allow

PCRA Counsel to amend his PCRA Petition and his failure to conform to the

requirements of the Pennsylvania Rules- of Criminal Procedure. At the PCRA

hearing on March 1£i, 2022, this. Court granted the Commonwealth's motion to

dismiss, and ordered the Defendant to file an amended petition as it related to the

sentencing issue. Additionally, ' this Count ordered that, within five days, Attorney

Hobbs send acopy of any records as requested by the Defendant, Attorney Hobbs

tiled aNotice of Compliance; with Court Order on March 2. 1, 2022, and his

representation ended on that date.

The Defendant thereafter filed. an Amended PCRA petition on March 25, 2022;

however, this Amended Petition was mistakenly docketed as Case Correspondence.

On April 20, 2022, the -Commonwealth filed aRenewed Motion to Dismiss

Defendant's Petition for Post- Conviction Relief on the grounds that Defendant

failed to file an Amended. Petition within 30 days, as ordered by the court:.

Unfortunately, due to the clerical- error with the Defendant's petition being

docketed as Case Correspondence, this Court granted the Commonwealth's Motion

4 to Dismiss on April 25, 2022. The Defendant's Amended PCRA Petition was then

properly docketed as an Amended Petition on May 9, 2022, Additionally, on May

9, 2022, the Defendant filed aMotion to Reconsider the Court's order granting the

Commonwealth's Motic'n to Dismiss. This Court Mien dismissed the Def'endant's

petition and denied the Defendant's Motion- for Reconsideration on May 13, 2022.

On September 1, 2022, the Defendant filed aNotice of Appeal with the

Superior Court, On September 2.0,2022, the Superior Court indicated to the

Defendant that the .Notice of Appeal was improperly filed and should have been

filed with the trial court. There'after, on October 17, 2022, the Defendant faled'a

renewed Notice of Appeal with this Court, This Court then filed aPa.R.A.P.

1925(a) Opinion on November 30, 2022. We note that this 1925(x) Opinion was

written without a1925(b) statement from the Defendant, and that this was done in

error on the part of d- ds Court. On August 9; 2023, the Superior Court entered an

Order requiring this Court to rule on the Defendant's Amended PCRA Petition of

,March 2022. The Superior Court'then relinquished appellate jurisdiction, 'I"he

Defendant then filed aMotion far Bail on August 21, 2023, which this Court

denied on August 29, 2023, The Defendant- then filed aMotion for Reconsideration

of Bail on September 14, 2023, which this Court denied due to alack of pending

appeal on October 2, 2023.

5 Due to the Defendant raising Ineffective Assistance ofCounsel as aclaim in

his initial PCRA Petition, this Court appointed PCRA counsel, Attorney Brandy

Hoke, Esquire, to represent the Defendant on October 3, 2023. On October 29,

2023, Attorney Hoke filed aMotion to Withdraw as Counsel citing that she had

attempted to contact the Defendant regarding this matter and that the Defendant

indicated that he did not want counsel to represent him, This Court then scheduled

ahearing on Attorney Hoke's motion to withdraw. A hearing was held on

November 28, 2023, diizxng which time 1) Attorney Hoke's motion to withdraw

was granted., 2) it was ordered that the ]Defendant would have 14 days to make. ally

changes to the active PCRA petition, and 3) it was further ordered that the

Commonwealth would have an additional 14 clays to respond to the petition.

Thereafter, the Defendant filed aMotion to Dismiss All Charges pursuant to

Pa.R.Crim..P.. 600 on December 1, 2023, an Amended PCRA on.December 8, 2023,

and asecond Motion- to Dismiss All Charges on :December 19, 2023. Additionally,

on December 6, 2023, Attorney Hoke filed aMotion for Payment of Counsel Fees,

which this Court granted-on December I .1, 2023; in response, the Defendant filed

Case Correspondence which this Court reads as a " Motion of Awareness," in which

the Defendant requested clarLItcation as to whom Attorney Hoke represented.

6 11. Facts

The facts of this case were previously laid out in the Opinion Pursuant to

Pa.R.A.R 1925(x) filed by the trial judge, Judge Trebilcock, in this case on

February 13, 2021. For judicial expediency, we will reproduce that portion of the

Opinion below:

The first witness to testify, was the victim, Emily Lee (nee Gephart). She testified that on July 12, 2017, around 3:30 p.m;, she was working as alicensed practical nurse at the [Defendant's] residence. Notes of Trial Transcript at 140-42, .144. She was tasked with attending to the [Defendant's] teenage son. She further testified that she had been to the [Defendant's] residence approximately three or four times prior to the day on which the [Defendant] raped.her. N.T. at 1.43. The victim stated the [Defendant's) son had never needed assistance from her, but she had always asked- the --child if.he'needed anything before leaving him alone to play his computer games ui his bedroom. N.T. 144-45. The victh stated that on July .12, 2020, she was using this slow period. to study her nursing curriculum, when the [Defendant] came home from work. N.T. 1.45. The [Defendant] who ,was employed as aproperty manager by his parents, was angry when he arrived home, due to atenant's failure to pay abill. N.T. at 145. Shortly after aiTiving home the [Defendant] offere the victim' abeer, which she accepted. N.T. at 147. When asked why she took the beer while on the job, she stated, "I. can't even explain how stressed out Iwas. It was so hard. The nursing school, it was accelerated. It Was hard -work. Ihad ababy and. Iwas working still. I was working paid; -time. Ihad just coma from school when Iwent to work that day..I don't know. ,My reasons wouldn't justify doing it, but I'd say that Iwas vulnerable to making abad decision Iguess if I thought it would relieve my stress." NX 'at 147-48-After accepting the beer, the [Defet.Want] told the victim that: he was going to smoke some rn.ari7uana in his bedroom and she could ,loin him "or go outside," N.T. at 148. The victim went with him into his- bedroom, sat on his bed, and. smoked matij uana. N.t,'AT 148-49. She said she drank asingle beer and. did, not know how marijuana she smoked as it Was not aregular habit with her,.an.d that she felt impaired by the combination. N.T. at 149. The victim ' testified that after smoking the marijuana the [Defendant] chatted with her on the bed before moving very close to her, N.T, at 14950. The victim interpreted the [Defendant's] movement as asexual advance and testified that she told him no immediately. She testified that .she said, "Itold him no. Isaid this is not. going to happen, we're not doing-this. And he- he didn't' move away when Isaid no. Ile still had his hand on me: Ike still was right there. Itold him no, He did. not move away until Isaid that Ihad just gotten engaged." N,T. at 150. The [Defendant] then tried to make small talk about the victim's engagement and -told the victim that he wanted to be her " best friend." N.T. at 150.. Abruptly, while the two were still conversing and the victim was telling the [Defendant] about her engagement to her child's father, the [Defendant] put his arm around the victim, put his mouth to her ear, and said, " Iwant- to lick. your pussy." N.T, at 151. The victim testified. that her response was to immediately jump up and get away from. him, N.T. at. 151. She testified that she left the bedroom but.that she felt too inebriated to drive away froin the [Defendant's] residence, despite .her desire to do so after her interaction with the [Defendant] in his bedroom.. N.T. at 152. The victim testified that when she ' left the bedroom the [Defendant] followed her. into the living [room] while she sat down on the couch and began crying. She testified that she began crying because `I thought Iwas'going to lose any job, Ithought Iwas going to ruin like everything that .Iwas working for. For me to do something like that when Iwas working andcal.l myself somebody who wants to be anurse and to do something that*wou.ld put me in this position. Ifelt so stupid, Ifelt so scared. Ifelt like Ijust made aroyally bad decision, you know?" N.T. at 152, The [Defendant] then sat down next to the victim on the couch and asked. her why -. she was crying, She expressed that she was afraid of losing.her job..The.[Defendant] then pulled out his cell phone and started to, .type a. message and- the victim testified that the [Defendant] said, " so tha. t's how it's going to be." N.T. at 153. The victim interpreted the [Defe'ndant's] actions as an attempt to report her to her employer, N.T. at 153: Sometime shortly after this interaction, the victim testified that the [Defendant] stood up from the couch and "he kind of guided me to my feet like by my arm," and brought her back into his bedroom. She testified that she: was pushing him alittle bit at this point. N.T. at 154. After the [D: efendant] led the victim back into. his bedroom, he attempted to undress her while she was standing near the door of his

8 bedroom. N.T, at 154. The Victim testified that she was attempting to keep the buttons of her shin together while he was unbuttoning them, N.T. at 155. The victim also testified that the [Defendant] put his mouth on her neck, kissing her, while attempting to undress her. N.T. at 155. She was trying to get a*way- from him while this was happening. N.T. at 155. However, she was pressed up against a wall while this was happening, N.T. at 156. After failing to unbutton her shift, the [Defendant] attempted to undo her parnts and then put her on the bed, N.T. at 156. The victim. testified that she stated "no" -repeatedly while all this was taking place, N.T. at 157. While she was laying on the bed the [Defendant] removed the victim's pants and underwear. N.T at 157. The victim testified that once her pants were off,' the [Defendant] performed oral - sex on her. The [Defendant] also put his finger inside her genitals. N.T .; at 157-58. After this first assault,. the [Defendant] pulled down his pants and put his penis -inside her vagina. MT. at 158. When the victim was asked if she said no at this point, she testified that she could not speak at that moment. She also testified that she was too scared to move, N.T, at 159. She said she felt paralyzed, bi4t that she was trying to move. N.T. at 160. The [Defendant] was on.top of the victim at this point. N.T, at 160. While the victim testified that she- was not sure how long this went on for, 'at some point the [D_efehdant] stated, in the victim's words, "I'm not going to bust in you, Z'. m going to bust an you, Emily." N.T. at 160. The'victim testified the [Defendant] ejaculated on he;r1ower abdomen. N.T. at 160-61., "lhe [vietiixl] testified that she was not allowed to leave from. the time'-the [Defendantj brought her back. into his room to the time lie finishod assaulting her. N.M. at 161. When asked if he prevented her from leaving, she stated, "Well, yes: He was in constant contact with my body. He was — my main focus was stopping the very — each little thing he was doing in the moment as far as removing clothes, trying to counter everything." N.T. -at.161. After the [I?bfendan.tj -'.frxlished, the victim was asked what she did after he left the Loom. Slie stated, "Ystarted to move. It took me alittle bit to get myself up, but 1stood up and pulled my pants up, put my pants on." N.T.. at .1.6.1. After putting her clothes back on, the victim went to a bathroom across the hall and cleaned off her stoinach. N.T, at 161-162. After cleaning herself " off, the victim got into her car, left the [Defendant's] residence, aild went to York Hospital to report: the rape. N.T. at 1.62-63. The victim ended her direct testimony by reiterating that

9 at no point did she consent to .having sexual contact with the [Defendant] and by identifying him in the courtroom. N.T. at 165. On cross examination, the victim testified she was taking medication for anxiety and bipolar at the time the rape occurred but that she could not remember the specific medication she was on in 2017. N.T. at 170- 71. She also testified again that she did drink abeer and smoke asmall amount of marijuana and that she wanted to leave before the rape occurred, but that felt that she was too impaired to drive away. N.T. at 173=74, The M. 6s,t telling exchange of the cross examination came when the [Defendant],. acting as his own attorney, asked the victim, "Are you one hundred percent sure you said - no to sex?" N.T. at 175. The victim responded, "Yes, . Iam one hundred — Isaid no over 50 times, Joseph." .Id. The [Defendant]. then followed up with, " Are you one hundred percent sure that Iejaculated on your belly?" To which the victim responded, " 150. percent. You were there. You know this," Id. The [Defendant] then asked, "Are you one hundred percent certain sure that Itook you back to the bedroom.?" 1d: To which the victim responded, "Yes. Iam certain it was you." Id. The [Defendant] resumed this style of questioning near the end of cross examination and asked, "Iwould ask you one more time. Are you one hundred percent sure, are you one hundred percent; sure that we had sex?" N.T. at - 193. To which the victim forcefully and tearfiilly responded, " We did not have sex, You raped me. Listen, -' you — I'm sorry, my wording — you raped me, okay? There's adifference. You -- Okay, {okay. Ineed asecond here to breathe because Icaimot believe.I'm hearing this. Ireally cannot believe [I'm] hearing this." 1'd. Oil redirect examination the victim testified that she had Izled for a Protection from Abuse (PFA) order the very next clay. N.T: at 194. She also testified about the effect her medication had on her in combination with the marijuana and beer she had consimaed. When asked if her medication could affect-h.er ability to perceive and remember the events that happened on July 12, 2017, she stated, "They certainly couldn't take away the memory of what happened to me. The thing about it is, the way it affects my memory, it doesn't create . a false memory. Sometimes it Makes ' it hai.der'to remember, so the things that — it's like if I'm trying to :remember something, it's just not there. It's not like something is there that shouldn't be, if that makes sense. Idon't know if I'm explaining that like well." N.T. at-200. After the victim testified, the Commonwealth called the Sexual Assault Forensic Examination (SAFE) nuise, Tami Hartlaub, On direct

10 examination, she testified regarding the procedures during the SAFE exam of the victim. The nurse began the exam at 8:05 p.m. on July 12, 2017, and completed the exam at 3:00 a,m. the next day, The nurse testified that she began the exam the same way she typically begins such exams, by obtaining amedical history from the victim. N.T. at 216-17. The nurse said the victim was very distraught when she arrived and was sobbing uncontrollably. N.T. at M. As part of the medical histoi),the nurse asked the victim to specify the allegations of sexual contact. The victim told her that her vagina had. been penetrated by the [Defendant's] penis and finger- and that she was unsure, but that her anus may also have beeil- penetrated by. the [Defendant's] finger. N.T. at 220. The nurse testified as to what physical evidence she collected from the victim. She collected the victim's clothing, oral swab samples, finger nail samples, pubic hair combing samples, external genitals swab, vaginal assault swabs, rectal•=assault swabs, and abuccal swab. The nurse also collected swabs from" the right side of the victim's neck and her lower abdomen. N.T. at 222-24. These items were sealed with evidence collection tape and turned over to the police. N.T. at 226-27. On cross examination the nurse testified that she used aspecial light to examine the' Arictilxz's neck and abdonne.na..for further evidence of secretions. The victim's neck fluoresced, indicatitag the possibility of dried, secretions. but her abdomen did not. N.T, at 231-32. On redirect examination, the nurse explained, "the light exam does not always reflect everything that may be on aperson's skin, so that's why we obtain these swabs secondary to the patient's report regardless of whether we have any actual findings with the light source or not. The patient could have cleansed that area, wiped it off with whatever she had hwady at the. moment, and she could have removed any of the DNA that --- or semen that had been put'on her skin." N.T. at 232- 33. The nurse ' also testified that there's no physical evidence that can be collected to determine whether an act was consensual or non- consensual. N.T. at 233. The next -witness called by the Commonwealth was John Bumstead, detective,with the Northeastern Regional Police Department. Detective .Bumstead testified to interviewing the victim on July 13, 2017, and collecting a.DNA sample from the [Defendant]. N.T, 237-38, 24041. He also testified as to the chain of custody of the sexual assault kit collected from the victim and - the - DNA sample collected from the [Defendant]. N.T. at 242-44.

11 On cross examination, the [Defendant] asked Detective Burnstead why he did not obtain' asearch warrant to search his apartment. N.T. at 259. The officer stated, "Ireceived this information and it was several days until after the initial incident had occurred. I once Icompleted some information and then Idid an initial interview [with the victim], from that time point Ialso know from other investigations that evidence can be destroyed.".-Id. On redirect e•xamffiation, .the Commonwealth asked the detective why he did not. question the victim about regarding any act of oral sex she may have performed on the [Defendant] during his first interview with the victim'. He testified that he did not ask the victim about that because she .did not volunteer it in the narrative she provided during his interview ofher.*N.T. at- 265-66. 2 The next witness called by the Commonwealth was .Bradley McLatghlih, forensic serologist for the Pennsylvania State Police. The serologist testified regarding the swabs and DNA samples collected from -the victim and [Defendant]. First, he testified as to the chain of custody and that the evidence . collection kit as sealed when it arrived at his office. N.T. '.at 275-77. He testified that the item's fxorYm the sexual assault kit that "were tested. included the vaginal sample, the rectal sample, the oral sample, the external genitalia sample, the swabs from the lower abdomen, the swabs from the right side of the victim's neck, the buccal swab. -The pubic hair combings, the :fingernail samples, the control swabs, and the clothing were-not tested as per department policy of first testing items that would yield more probative evidence before sending out'Luls,of secondary importance, N.T. at 278-79. The vaginal a'nd rectal samples both came back negative for seminal material, N.T. at 279. On direct examination the serologist testified that the oral was tested for seminal material and came back negative and therefore no. confirmatory. test was performed after the test for seminal material -came back negative. N.T. at 281. The external genitalia sample did not return positive results for the presence of seminal material. .E1 confirmatory test, using a microscope, revealed the presence of spermatozoa. N.T. at 281. The test of the lower abdomen sample came back. negative. Id. The test of the neck swab came back: positive for the presence of saliva. Id. The buccal swabs, from the victim and [.Defendant], .are merely used to determine which DNA belongs to which person. N.T, at 281-82. On cross'-exaniinat,ion, the serologist was asked in particular about the oral swab taken from the victim. The serologist stated;

12 The oral sample would have been item 1.3 that was collected from the inside of Emily Gephart's mouth,so those are the swabs that I tested. The testing that Tperformed on this,the presumptive test was negative .We went on and did the slides looking for the presence of spermatozoa .No spermatozoa were identified. We have athird test which is called p30 .P30 is an enzyme protein that's present ip lii'gh concentrations in seminal fluid. That particular testing was positive. It 's-not.aconfirinatoxy test for seminal material because p30 is'present -in other bodily fluids ,not in the concentration that it is in seminal fluid, but it is present in other body fluids, so we considered it apresumptive test. So that ' swhy the conclusion reads prestunptive chemical testing indicated the presence of seminal . flui•d, however no spermatozoa were identified . N.T. at 289-90. The [Defendant]then asked the serologist for his opinion on why the spermatozoa. would be so low. The serologist stated, " it would be veryhard for ire to speculate. Iperform. chemical tests and examine the evidence. I can't really speculate on how it got there or the circumstances of. this particular case." N.T. at 290. The [Defendant] asked asimilar question with regard to the lack of Seminal, fluid found on the victim ' sabdomen. and the serologist gave substantially the same answer. N.T. at 291-292. The next witness called . by the Commonwealth was Zachary Tanczos, expert -in forensic DNA., employed with the Pennsylvania State Police to test the DNA samples in this case .The forensic expert testified on the DNA prof les as they related to the samples collected from the victim and the ; [Defendant], First, he explained his testing procedures. N.T, at 303-307.Then he went into the details of the report he produced for -this case .. N.T. at 308-320 .His analysis included the two buccal swabs, one from the [Defendant] and -one frorn the victim, and five items that wore provided to him for testing :the vaginal swabs, the rectal swabs,, the victim 'soral swabs, the external genitalia,and the neck s4m. He ' :explained that the - samples were tested for sperm fractions and non- sperm fractions.When.DNA from asperm fraction is present it is more likely to come from asperm cell, biit -it is not certain to be fiom such a cell, N.T.at '305-06 ,314. The vaginal sample indicated DNA, from two people but there was insufficient DNA from anyone other than victim to lead to aconclusive i dentification .N.T. at 310-12. The rectal- sample. did .have amajor component match with the DNA profile of - the [Defendant1 .' Menon- sperm fraction of the oral t•3. sample contained the DNA of two people and the expert stated, "Emily Gephart and Joseph F. gent cannotl5c excluded as potential contributors to this mixture in it was 19 out of the 24 tesiing locations. The remaining locations were inconclusive due to the stochastic effects observed." N,T. at 31 St

When asked-to clarify the expert testified, "when stochastic effects come into play, what that means is one or both of those people in this mixture profile a.:ie contributing - there's not that much DNA in there, that they are essentially not representing themselves fully in the entire mixture." Id., Tha sperm fraction of the external genitalia swab was "consistent with :ahnixture of at least three individuals." NX at 316. The major component ,of the, spenn fraction was consistent with the DNA profile of-the [ Defendant]..N.T. at 316. The sample't'rom the neck matched the DNA'profile of the victim. N.T. at 317. The expert then testified about-ahother test, focused on the male Y- chromosome, he performed on'the samples. The non- sperm fraction of the vaginal swab,Nvhen tested with this method, revealed aDNA.profile that " matched the male profile - of Joseph F. Bent." N.T. at 319. The expert further stated, "Vice would expect to see this provide in every one of 8,696 individuals." Id, On cross ex' inination, the [Defendant] asked the expert many clarifying questions, which the expert answered, ' N.T. at 321-29. The [Defendant] al.s.o asked the expert about spermatozoa found in the victim's oral sample, but he likely misstated or misunderstood the prior testimony of the expert and was referencing the sperm fraction, of the oral. sample. The expert answered; 'Itested the sperm and non-sperm fraction of the oral :samples. From the sperm fraction there was a, single individual, and that DNA..and , that profile matched the profile of Joseph F. Bent." N.T. at 329-30.. The [Defendant] testified on his own behalf during his defense. Much of the [Defendant's] testimony focused'on.his life prior to July 12, 2017. Mudli of it was not relevant to the proceeding except as background inl.ormation-to his self-professed virtue. N.T, at 345-49. However, he did put forth his version of events of that day as well. He testified that he arrived home around 4;20 .p.m. after working on a tenant's apart tent in Lancaster. He said he arrived home angrily talking to his ex-wife about the condition of the apartment. N,T. at 350. He claimed he told the victim to leave after he got off the phone. He testified that she refused -to leave and said she was " in no position to leave." N.T. at.352. The [Defendant] testified that the victim said she

14 already had one of his beers, before he arrived home. 3 Id. He testified. that she was, at this point, afraid that he was going to get her in trouble with her employer. He said that he told her he would not do that, and that he- at that point tried to get out of the house. Id. He testified that "she jumped in the way in the front of the door" and prevented him from leaving, 4 Id. The transition is not clear from_ the record but after this interaction, the [Defendant] testified he made aphone call to his electric coxmpan•. N.T, at 353, After that call the [Defendant] showered while the victim was outside. Id. The [Defendant] testified, in avery confused fashion, that after the shower he and the victim were sitting on his couch together talking. N.T. at 354. After this statement, the [Defendant's] testimony devolved into aseries of assertions that would have been more .. :appropriate fox a closing argument than direct testimony, I-Ie. was. admonished by the Court for this and continued testifying. N.T. at 356-57, 1-1e ended his direct testimony with, ` So the facts is me and Emily -have sexual contact, innocent, innocent sexual contact. No, Idid'.not put Emily against any wa11. Idid not throw Emily on the bed.. Emily. willingly walked into my bedroom., willingly walked into my bedroom. Every other'nuxse that comes to x.y house for the past 15 years, never had a problem. Never had aproblem. Why would I choose this one time? Never had aproblem. Emily and Ihad 'aonsensual sexual contact. That's what it was. Consensual sexual contact.. Inever touched her, never put my had on h.er 'in one way, shape or f6rm. That's what Ihave to say:' XT at 35859.. On erpss examination, the [Defemalit] was asked about his claim that the A7ictim perfartried oral sex on him and was asked where he might have ejaculated. His response was " did not." When asked the follow up question, "You didn't ejaculate?" he gave the following lengthy response: ` As I'said, whatever was going on in her head, again, the truth is stranger than fiction. She came in here and she'll tell you that Ithrew her up against the wall to make it sound -like that's what happened. The truth is.stranger than fiction, and the evidence prove that my truth adds up. .The - truth is stranger than fiction. If they are going to come in here and tell you — that doctor is going to tell you that anapkin can wipe off body parts, but your shirt, your shirk cannot wipe off saliva, your shirt catinnt wipe off saliva off your neck, it's aprudent person would not believe- that. -If they are going to say that -the cloth can wipe off body parts, tli&n how did they field — how did they find semen on her? That means Tier underwear should be able to remove that, pulled and removed that. That's what that means. So if they are going to come

15 here and tell you, what's the most prudent thing would you believe? I did not.Like Isaid,once she got off of — once she et off of what she was on ,she was doing,be again,Ididn 'tknow - •Ididn't know what was going on with her.Idid not know. Idid. not know what was going on with her. She go from one state to another stage ,Idid not know what was going on with her. Itried to like ask her plenty of times to go because she did not make an attempt. She jumped in my way. I went to any bedroom . Emily came into my bedroom and kicked my door off, and Isaid Idon't- understand what the heck is going on.' N.T. at 371-72. The [Defendant] was then asked, "She kicked your door ol'i'?" N.T. at 372. To which he responded, " She kicked my door off, yes." Id. When asked why he did not report this damage to the police he said, "Well I'm supposed to tell the police how to do .their job now? Is that my jab? The 'poliae didn't do his job and that's niy fault." N.T. at 373. When asked why*did you not mention the door being "kicked off" at the PFA hearing . that - took place shortly after July .12 ,2017, the [Defendant]stated , 'Again, Isaid she punched it. I. didn't- say the door was broken .Ididn't say the -door -.vas broken. Isaid the mirror that was on the back of the door that was on 'anew latch because of the vibration jumped off. Ididn't say the door was broken." Id. Eventually the [Defendant]answered the original question about whether he ejaculated and said; "not knowingly,no. Not lrnowingly I did not. Idid not knowingly ejaculate, no." Id. The [Defendant] also testified, ` She and I have oral sex, . When we done with oral sex, .this is where Ithink the story changes . She said to me that she was engaged,and Ilooked her -

and said —and I' said why didn't you tell me this before this happened, I'm going to the" golf course. That's. what Idid.' N.T. at 382-84, The ,jury convicted him on all counts.

OI)inion Pui•stiant to Pa.R.A.P. 1925(a), February 13, 2021, pages 2-1.4.

H1. PCRA Md - tion

As an initial matter, we note that acoui tcannot have jurisdiction 'to bear an

untimely PC RA petition; Commonwealth aRobinson, 837 A.2d 1157, 1 ,161 (Pa.

2003) (citing Comm,o•imJ. ealth v, Rienzi, 827 A.2d 369,371 (Pa. 2003 ) (citations

16 omitted)). "[A]ny PCRA. petition, including asecond or subsequent petition., must

be filed within one year of the date the judgement becomes Final." Commomv)ealth

vBeeakiron, 781 A.2d 94, 97 (Pa. 2001) (citing 42 Pa.C.S.. § 9545(b)(1)). And "[a]

judgment becomes final at the.-conclusion of direct review or at the expiration of

time for seeping the review." Id. The time to seek direct review of our Supreme

Court is within thirty days of the Superior Court's determination, See Pa.R.A.P.

1113(a). In the instant- case, judgement became final following the Superior Coi.u-t's

Order, affirming the Defendant's convictions, on June 22, 2021. Notably, the

Defendant did file aNotice of Appeal with the Supreme Court; however, a

Praecipe for Discontinuance. was tiled with the Supreme Court on August 13, 2021.

Therefore, the Defendant.would have had until June 22, 2022, to timely file a

PCRA Petition in this case. The Defendant filed the instant PCRA Petition on

September 14, 2021, -with an Amended Petition fled on Marcia. 25, 2022, both of

which are within the time fi•ame required by 42 Pa.C.S. § 9545(b). Procedural

defects, eiddressed supra, have .led us to the instant Amended PCRA petition being

filed by the Defendant on December 8, 2023.

We now move to the Defendatat's timely PCRA. claims. ' rhe Defendant

presents, Rom this Court's- vie' ten claims for review:

A. Aviolation of the Defendant's right to confrontation

B. A violation of the Defendant's right-to counsel

17 C, Ineffective assistance of counsel

D. Newly discovered evidence

E. Judicial misconduct

P, PCRA court error

5t" ,6" ,8" ,an d 14• amendment violations

H, Right to self: representation

T, Judicial recusal

J. Cover - up

Defendant' Amended PCRA Petition, .December S, 2023, supplemental pages 4-10.

To he eligible for PCRA Relief, a. Defendant must plead and prove by a

preponderance of the evidence all of the following:

(I) That the petitioner has been convicted of acrime under the laws of this

Commonwealth and is at the time relief is granted:

(i) ' Currently serving asentence of imprisonment, probation., or

parole for the crime;

(ii) Awaiting execution of asentence of death for the crime;

$erving asentence which must expire before the person, may

commence serving:the disputed sentence; or

(iv) Has completed asentence of imprisonment, probation, or

parole for the crime and is seeking relief based upon DNA .evidence obtained under section 9543.1(4) (relating to

postconviction DNA testing).

(2)That the conviction or sentence resulted from one or more of the

following:

(i) A violation of the Constitution of this Commonwealth or the

Constitution or laws of the United States which, in the

circumstances of the particular case, so undermined the

truth- determining process that no reliable adjudication of

guilt or innocence- could have taken place.

(ii) Ineffective assistance of counsel which, in the circumstances

of the particular case, so underinined -Ithe truth-determining

process that: no reliable adjudication of guilt or innocence

could have taken place,

(iii) A plea. of guilty unlawfully induced where the circumstances

make it likely that the inducement caused the petitioner to

plead guilty and thc•,petitioner is innocent.

(iv) The improper obstruction by government officials of the

petitioner's .right of appeal where ameritorious appealable

issue existed acid was properly preserved in the trial ,court.

(v) Deleted,

19 (vi) - The'unavailability.at the tune of trial of exculpatory

evidence that has subsequently become available and would

have changed the outcome of the trial if it had been

introduced.

(vii) J The imposition of asentence greater than the lawful

maximurn.

(viii) A proceeding i.n atribunal without jurisdiction.

(3)That the allegation of error has not be previously litigated or waived.

(4)'Y'hat the failure. to litigate the issue prior to or during trial or on direct

appeal could not have been the result of any rational, strategic, or tactical

decision by counsel.

42 Pa.C.S. x'9543.

An issue raised by aDefendant's PCR.A.petition has been previously

litigated if: the highest appellate court in which the petitioner could have had

review as amatter of right has ruled on the merits of the issue or it has been raised

and decided in aproceeding collaterally attacking the conviction or sentence. 42

Pa. C.S. §9544(a). An issue is waived if the Defendant could have raised it but

failed to do so before trial, at- trial, on: appeal, or in aprior state postconviction

proceeding. 42 Pa. CS-J954- 4(b).

20 A. Right to Confrontation

In the Defendant's'first claim for.PCRA relief, the Defendant argues that the

Commonwealth violated the Defendant's right to confrontation when they did not

present critical witnesses at ftial,'These "critical witnesses" include: the Victim's

boyfriend and the laboratory'technician who did the Victim's blood work. Prior to

the commencement of trial, the Commonwealth's attorney provided alist of the

witnesses they would be calling to both the Defendant and the Trial Court. The

Defendant did not object to this list at the time. The relevant portion of the

transcript is attached hereto as "Appendix A." Additionally, the Defendant had the

same right and opportunity as the: Commonwealth to call any witness he wished to

have at trial and examixie them on the record, and he did not exercise that right.

This issue should have. been raised at trial, in apost-sentence motion, or on direct

appeal and was not. Therefore, this issue is waived - for purposes of PCRA., pursuant

to 42 Pa,C,S, § 9544(b),

F. Right to Counsel'

In the Defendan't"s second claim- for PCRA relief, the Defendant argues that

his Sixth A.mendmentTight to counsel'was violated when the Trial Court removed

counsel prior to trial., The Defendant alleges that Judge Trebilcock was prejudicial

in this decision. Importantly, counsel, Attorney George Marros, was removed as

counsel upon the request of the Defendant. The relevant Order is attached hereto as

21 "Appendix B." Additionally, this issue should have been brought Lip at trial, in a

post sentence motion,'or on direct appeal and was not. Therefore, this issue is

waived for purposes of-PCRA, pursuant to 42 Pa.C.S. § 9544(b).

C. Iii effective Assistance of Counsel

In the Defendant's third claim, he raises Ineffective Assistance of Counsel

on two occasions. To obtain relief on aclaim of ineffectiveness o£ counsel, the

Defendant must satisfy'the performance and prejudice test set forth in Str ckland u

rf,rashingtnn., 466 U.S. 668 ( 1984). In Pennsylvania, the Stricklcind test requires a

petitioner to establish that. ( 1) the underlying claim has arguable merit; (2) no

reasonable basis existed. for counsel's action or -failure to act; and (3) the petitioner

suffered prejudice as a. rosutt of counsel's error with prejudice measured by

whether there is areasonable probability that the result of the proceeding would

have been different. A failure to satisfy any prong of the test for ineffectiveness

will require rejection of-the claim. Carr monwealth aAll, 6,08 Pa. 71, 86 (2010),

Overall., counsel is presumed to have rendered effective assistance. C,oimnonwealth

u ou-sman, 658 Pa. 49, 68 (2020).

The Defendant first contends that Trial Counsel erred by not objecting at

sentencing as it relates:tc the -Defendant's prior record score. The Defendant

indicates that his prior:r .ecord-•score was a .zero (0) as opposed to aone ( 1).

Importantly, it is unclear that the Defendant'would be prejudiced by this error. The

22 standard range for aprior record score of zero (0) for the crimes Tor which he was

convicted would be 12,.5 to 25 years. The standard range for aprior record score o£

one ( 1) for the crimes for which he was convicted would be 15 to 30 years.

Additionally, the maxi. m.um allowable sentence for the crimes for which the

Defendant was faund:g'uilty was in excess of 50 years. The Defendant was

sentenced-to an aggregate teirn of 1.4.5 to 29 years, which is in the middle of the

standard ranges listed above. Therefore, Defendant does not appear to have been

prejudiced by this errok..)iurther, this'issue should have been raised in apost-

sentence motion or on direct -appeal and it.was not. Therefore, pursuant to 42

Pa.C.S. § 9544(b), this issue is waived..

The Defendant'n"'ext contends that PCRA.Counsel was ineffective in fling a

"no merit letter" in rest once -to the. Defendant's pro , se PCRA. petition. "1"he

Defendant argues thai'PCR.A Counsel was ineffective due to raising arguments

"against his client as to afaction of the claims raised in the pro se ,petition."

De, (endow • Amended PC.RA Petition. In. determining whether counsel was

ineifective for fling a"no merit letter," we need to look no further than element

number-two ( 2) of the:StKckland test: Whether Counsel had areasonable basis for

his action or inaction,

Primarily, alawyer shall not bring or defend aproceeding, or assert or

controvert an - issue therein, unless there is abasis in law and fact for doing so that

23 is not frivolous., which.includes agood faith argument for an extension,

modification or ,reversal of existing law. Pa. St. RPC R. 3.1t Further, the right of an

attorney to withdraw as PCRACounsel due to meritless claims, and the process

under which they may'do so, was established in Commonwealth v, Turner, 518 Pa,

491 ( 1988): When, intexercise of his professional judgement, counsel determines

that the issues raised hde the [PC:RAj are meritless, and when the [PCRA] court

concurs, counsel will be permitted to withdraw and the petitioner may proceed.,pro

se, or by privately retained counsel, or not at all. Further, it was established in

Pennsylvania v. Finley- 481 U.S.:551 ( 1987), that the right to appointed counsel

extends to the first appeal of tight, and no fiarther. Because adefendant has no

federal constitutional right to counsel -when pursuing adiscretionary appeal on

direct review of his conviction, he will*have no such right when attacking a

conviction that has long since -become final.upon exhaustion of the appellate

process. Id at 555.

In the instant case, PCRA Counsel, Attorney Charles Hobbs, indicated that

two of the three clailasxaised in the Defendant's . pro se PCRA Petition were

without merit but that. th'e Defendant would not allow him to amend the petition to

exclude the frivolous Qlaims. Cawing aduty , to both the Defendant and to the Court,

Attorney Dobbs sought'- guidance froze the original PCRA Court, which allowed the

Defendant to proceed oti his claims without the assistance of counsel. It is clear,

24 pursuant to his duties to the Court, that Attorney Hobbs had areasonable basis for

his actions. Additionally, it is unclear the Defendant suffered any prejudice as a

result of this action, as the Court permitted him to move forward with all of his

PCRA claims pro se. We therefore find that this issue is without merit.

The Defendant .alleges that the Commonwealth erred by -not turning over

evidence when asked before trial. The relevant evidence"is astatement .made by the

Victim's boyfriend to -the police, While the Defendant did not indicate in the instant

PCRA petition what this statement would be, it was previously raised in the

Defendant's pro se petition for PCRA relief of September 14, 2021. In that petition,

the Defendant ipdicated that "the Commonwealth did not present evidennce that

would support the fact that [the victim] was not telling the truth. about.her intake of

alcohol on [the day of .the incident leading to"these charges]." To obtain

postconviction relief based on after-discovered evidence, aPost Conviction Relief

Act (PCRA) petitioner must demonstrate that the evidence; ( 1) could -not have been

obtained prior to the aonclusion,of the trial by the exercise of reasonable diligence;

(2) is not merely corroborative or cumulative; (3) will not be used solely to

impeach the credibility -bf awitness; and (4) would likely result in a' different

verdict if anew trial were granted. Commonwealth aForeman, 55 A.3d 532

(Pa.Super. 2012), In the: instant case, it is clear that the evidence the Defendant

25 wished to use would be used solely to impeach the credibility of the victim in this

case, by asserting that,she was lying. Therefore, we find that this claim is without

merit and that the Defendant cannot obtain relief on this matter.

The Defendant alleges that'the Trial judge was guilty of misconduct when he

uttered the word "n* * r to the Defendant, ablack man, at sentencing. This word

was only said during sentencing when nudge Trebilcock was citing the Defendant

who had previously alleged that one of his- attorneys had called him a "n*

This was in reference to- the fact that the Trial Court Found the Defendant to be not

credible, in that he would lie and'say virtually anything to get out. of trouble, The

relevant portion of . the' sentencing transcript is attached hereto as "appendix C."

We tlherefore find that'this issue is without merit.

F. PCR.A. Court Error

The Defendant argues that the PCRA. Court erred in the - following ways: a

violation of the'Defendant's due - process rights by not com.plyirig with Rule 907 for

dismissal; prejudice.to ;lhe Defendant due to an erroneous statement in this Court's

1925(a) statement of November 2022 that indicated the Defendant's petition was

dismissed for being uxxfinely filed; and bias against the Defendant when the Court

dismissed his PCRA for untimely filing. Importantly, these issues are the reasons

for which this case was remanded to tbvis* Count by The Superior Court. We

26 therefore find that these. issues have been previously litigated, pursuant to 42

Pa.C.S. § 9544(a), or are addressed herein.

G. 5", ht", 8"', and 14 11 Amendment Violations

The Defendant raises Stn, 6t , 8th, and 14th amendment violations in his PCRA

petition. However, the,Defendant -does not elaborate on these alleged violations and

addresses them no further than- asking, "were the Petitioner's rights violated?"

Defendants are not entitled to relief on allegations of unconstitutional

administration where 'allegations are. wholly conclusory and lacking in factual

specificity. Wilson v Post Conviction HeoringAct of Com. ofPo., 321 F'.Supp.

1234 (W.D. 1971). Because the Defendant's allegations Ore wholly conclusory and

iaoking in - factual specificity, this issue is- without in.erit tend is waived for the

purposes of PCRA.

H9 Right to Self- Representation

The Defendant alleges that his* 6th- amendment right to self"represexitation

was violated by this Court's appointment'of court-appointed counsel for the instant

PCRA. petition, following remand. fr6m The Superior Court. This is not aclaim for

which Post-Conviction -Collateral Relief can be granted pursuant to 42 Pa.C.S,

§9544(2), Further, this Court appointed counsel to the Defendant due to previous

issues regarding this Defendant's' waiver of counsel and ia ro - se representation. The

appointment was merely asafeguard -to protect the Defendant's PCRA rights

27 moving forward. The appointment of counsel did not prejudice the Defendant in

any way. We therefore find that this issue is without merit.

I. Rectisal

The Defendant'listed "recusal" as an issue he intended to address in his

PCRA petition. The Defendant did not discuss this issue further. Therefore, we

find that this issue is without merit.

J. Cover-Up

In the Dofend.ant's final issue, he alleges that a " cover-up" is taking place in

this case. He maintains his innocence as ,areason that this " cover-up" is talrsng

place and alleges all the facts he had previously raised as PCRA claims. This issue

is without merit. This -is -not a.claim for which relief can be granted under the Post-

Conviction Relief Act pursuant to 42 Pa.C.S. § 9543(2).

TV. Conclusion.

Based upon the reasons stated above ;this Court DENIES Defendant's

claims for PCRA relief. No relief is granted.

V. lDefendant's'Motions to Dismiss

As indicated supr . a, the Defendant flied -three motions to dismiss all charges

against hi,m.. One was filed December 1, 2023, another was filed on December 8,

2023 (attached to the'Defendant's Amended PCRA Petition), and the third was

riled December 19, 2023. The Defendant's December lit motion to dismiss does

28 not indicate any legal basis for dismissal under° any rule proscribed by this

Commonwealth. The motion is essentially aranting dissertation alleging bias,

prejudice, and ill- will towards the Defendant. Because there is no legal basis for

which relief can be granted, this first motion to dismiss is hereby DENIED,

The Defendant's December 8O.motion to dismiss was filed pursuant to

Pa.R.Crim.P. 600, alleging that the- time to.bring the instant case to trial has

expired. The Defendant states the following with regard to his - motion: " When an

appellate 'court has remanded acase to the trial court if the defendant -is

incarcerated on that cash 'trial shall conxmerice within 120 days after that date of

remand." This Court believes the Defendant- is referring* to Pa.R..Crim.P. 600(B)(5),

which states the following- Except in cases in which the defendant is not entitled to

release on bail as provided by law, no defendant shall be held in pretrial

incarceration in excess of 1.20 days -from the date ofthe'written notice fio.m the

appellate court to the parties that the record was remanded. Importantly, this case

was not remanded fot.a,new trial. The Superior Court previously affirmed the

Defendant's sentence -in'their Order dated June 22, 2021. Therefore, the Defendant

is not in pretrial incarceration, but he is instead serving his sentence, which was

affirmed on appeal: We therefore DENY the Defendant's second motion to dismiss,

Finally, the Defendant's December 19 11 motion to dismiss was additionally

filed pursuant to Pa.R.Qr'im.R 600. "1'1ie'Defendant again cites to Pa,R.Crim,:P.

29 600(B)(5)'s 120- day time frame. For the reasons stated above, we will also DENY

this third motion to dismiss.

VI. Defendant's " Motion of Awareness"

As indicated . supra., the Defendant filed a "Motion of Awareness" on December

19, 2023, 'this Court is unaware of what a " Motion of Awareness" is and does not

find alegal basis for this motion. However, the Defendant seems to be requesting

information as to whom Attorney Brandy Hoke represented in the instant case in

response to an Order Granting Payment of Counsel Dees filed by this Court on

December 11, 2023, Attorney Holce was appointed to represent the Defendant,

Joseph Francesco Bent, for the purposes of PCRA. While the Defendant did not

wish to have counsel represent him, and while Attorney Hoke was permitted to

withdraw from the case, Attorney.Hokc did complete 23 hours of work, despite

the Defendant refusing to cooperate with her representation, and is entitled to

payment for that work completed. We therefore DISMISS WITH PREJUDICE

the Defendant's Motion,

BY THE COURT,

bate: CA'Y HIA,tN J. L' NDERGAST, JUDGE