Commonwealth of Pennsylvaniain the COURT of COMMON PLEAS

Commonwealth of PennsylvaniaIN THE COURT OF COMMON PLEAS

OF LACKAWANNA COUNTY

v. Criminal Division

Stephanie Tarapchak,No. 14-CR-550

Defendant

DEFENDANT’S BRIEF IN SUPPORT OF MOTION TO SUPPLEMENT COUNSEL, BERNARD BROWN, DUE TO INEFFECTIVE COUNSEL, VIOLATIONS TO THE RULES OF PROFESSIONAL CONDUCT FOR DISHONEST AND UNETHICAL CONDUCT, ORAL AND WRITTEN DECEPTIONS AND MISREPRESENTATIONS TO THE DEFENDANT AND THE COURT; WILLFUL, KNOWING AND DEBLIBERATE VIOLATIONS OF DEFENDANT’S DUE PROCESS AND LIBERTY RIGHTS, AND CONSPIRACY WITH OTHERS TO DEPRIVE DEFENDANT OF HER DUE PROCESS AND LIBERTY RIGHTS

NOW COMES, the Defendant, Stephanie Tarapchak, incarcerated, on this 15th day of September, 2015, by and through Joseph Pilchesky, her lawful “Next Friend”, with her Brief in support of Motion to Supplement Counsel, Bernard Brown, due to ineffective counsel, violations to the Rules of Professional Conduct for Dishonest and unethical conduct, oral and written deceptions and misrepresentations to the Defendant and the Court, and his willful, knowing and deliberate violations of Defendant’s due process and liberty rights, andconspiracy with others to Deprive the Defendant of her Due Process and Liberty rights, and submits as follows:

STATEMENT OF THE CASE

The Defendant, who is a Doctor of Osteopathy and political activist, has been charged with various and serious crimes relating to her management of her medical practice in Ashland, PA. Upon her arrest, she was incarcerated for failure to make bail that was set at $100,000.00 cash. Upon incarceration, she applied for counsel through the Public Defender Office, which was denied until a judge ordered reconsideration, which resulted in Joseph P. Kalinowski being appointed as counsel. On May 2, 2014, the Defendant’s bail was modified and she was released on bail, which included supervision under House Arrest. On July 16, 2014, the Defendant filed a voluminous Petition to Remove Kalinowski for various acts of misconduct and disturbingly ineffective counsel. Eventually, Kalinowski was removed on January 23, 2015. Simultaneous to Joseph P. Kalinowski being removed, Judge Geroulo recused himself. Judge Barrasse was assigned and he appointed current counsel, Bernard Brown, to represent the Defendant.

However, back on October 23, 2014, House Arrest staff arrested and committed the Defendant to prison for alleged bail violations, notwithstanding the fact that there is no Application for a Bench Warrant on the record by any member of law enforcement, nor is there a Bench Warrant or Return of Service on the record. In fact, there is no document on the record supporting what commitment authority was used to incarcerate the Defendant and keep her incarcerated for nearly eleven (11) months. There is no transcript or court order on the record that supports that the Defendant was adjudicated by a judicial officer,after a hearing in open court,to have violated bail conditions and within such order, punishment was assigned in the nature of continued incarceration in perpetuity. No such order was ever served on the Defendant. The record does not support that the Defendant was given a (72) hour Bench Warrant hearing for bail violations as required under Pa. Code 234 § 536 and § 150, et seq. The record does support, however, by way of exhibits attached to the Commonwealth’s Answer to the Defendant’s Motion to Modify Bail, that the Defendant was never taken before a judicial officer within (72) hours on allegations that she violated bail conditions, but rather, the adjudication of her guilt was determined by non-judicial staff members of House Arrest and the Prison. The exhibits referenced in the Commonwealth’s motion included documents referred to as a Misconduct Hearing Report, an Incident Report and a letter from House Arrest Director, Patrick Lynn, to Judge Vito Geroulo, who was the judge who modified the Defendant’s bail.The Misconduct Hearing Report expressed a conclusion by House Arrest staff that the Defendant should remain incarcerated. It was not filed on the record or served upon the Defendant. The Incident Report was authored by House Arrest staffer, Jack Werner, which provided a summary of events that reflected that the Defendant went off electronic surveillance on October 22, 2014, which report was also not filed on the record. The letter from Patrick Lynn to Judge Geroulo advised that the Defendant was given a hearing at the prison by prison staff, which the Defendant did not attend, and she was found to be in violation of House Arrest Program rules, and therefore, terminated from House Arrest and incarcerated. The letter recommended that the Defendant remain incarcerated without reference to a timetable. The letter was not filed on the record, nor served upon the Defendant. It was served upon Warden McMillan, Adult Probation, Judge Geroulo and the prosecuting attorney for the Commonwealth, but not the Defendant. The record is silent on what, if anything, Judge Geroulo did when he learned via letter that the Defendant’s adjudication of guilt of bail violations was determined by non-judicially-authorized prison staffers, and the decision to continue her incarceration was determined by non-judicially authorized prison staffers.

Subsequent to Atty. Brown being appointed, two pre-trial hearings took place, one on April 10, 2015, and another on August 6, 2015. At both hearings, the issue of the Defendant never having had a Bench Warrant hearing on bail violations surfaced, but the issue was not raised by Atty. Brown at either hearing. Brown not only ignored that the Defendant never had a hearing before a judicial officer within the time required, but he ignored that there is no Bench Warrant, or any other commitment document on the record to authorize incarceration and continued incarceration for nearly eleven (11) months. Worse than ignoring the issues of deprivation of the Defendant’s due process and liberty rights relating to her Bench Warrant arrest, Atty. Brown lied to the court by saying that those issues of deprivation of rights were included in a Writ of Habeas Corpus that he filed, and the court had already heard them and disposed of them. Even worse than that, Atty. Brown remained silent when other judicial officers were indicating that the issues of deprivation of rights relating to the Defendant’s Bench Warrant arrest and incarceration were already presented, argued and disposed of. Worse than anything, when the Court concluded that the Defendant never had a Bench Warrant hearing before a judicial officer, Brown said he knew nothing about it; and, he never pointed out to the Court at any time since his appointment that the Bench Warrant used to arrest and incarcerate the Defendant, if one ever existed, had expired last October 27, 2014, so his client should automatically be released, since no authority is in place to hold her. Those are mere samplings of Brown’s designed ineffectiveness and his complicity in a conspiracy with others to keep the Defendant in prison until her trials begins, which depreciated her participation in her defense to practically nothing, which otherwise would have been valuable. Finally, among other things, Atty. Brown never provided the Defendant with the Discovery he promised she’d have in June and did not keep her informed of the Investigator’s accomplishments.

Statement of Questions Involved

Has Attorney Brown made numerous false statements of material facts before the Court regarding his knowledge of events relating to the Defendant’s arrest and incarceration on October 23, 2014, for allegations of bail violations to the detriment of the Defendant’s best interests?

Proposed answer: Affirmative

Did Atty. Brown repeatedly withhold from the Court that the Bench Warrant used to arrest and incarcerate the Defendant expired on October 27, 2014?

Proposed answer: Affirmative

Did Atty. Brown repeatedly withhold from the Court that no document exists on the record to support authorization for Warden McMillan to hold the Defendant after October 27, 2014?

Proposed answer: Affirmative

Did Atty. Brown act, by writing or word, or by his silence, to conceal that the Defendant never had a Bench Warrant hearing within (72) hours of arrest and that said Bench Warrant expired after (72) hours?

Proposed answer: Affirmative

Did Atty. Brown act, by writing or words, or by his silence, to conceal that the Defendant was adjudicated to be in violation of bail conditions by non-judicial prison staff and has been held in prison for nearly eleven (11) months on the recommendation of non-judicial prison staff, and with no judicial intervention or court order?

Proposed answer: Affirmative

Did Atty. Brown lie to the Court on August 5, 2015, when he claimed he never received a copy of the Defendant’s civil petition for habeas corpus relief that was filed on July 6, 2015, when, in fact, he was served via email with a complete, true and correct copy of the Rule and the Petition on July 6, 2015?

Proposed answer: Affirmative

Did Atty. Brown lie when he told the Court that the Defendant’s re-incarceration on bail violations was the result of her paramour, Joseph Pilchesky, contacting House Arrest and reporting her missing?

Proposed answer: Affirmative

Did Attorney Brown visit the Defendant at the prison and engage her in a screaming match, making physical and aggressive gestures to her, and say, “If it wasn’t for Joe Pilchesky ratting you out to House Arrest you wouldn’t be in here.”?

Proposed answer: Affirmative

Does the record support that Joseph Pilchesky never made contact with House Arrest to inform them that she was missing?

Proposed Answer: Affirmative

Did Atty. Brown provide the Defendant with the Discovery he received from the Commonwealth, as he promised he’d provide in June, 2015?

Proposed answer: Negative

Did Atty. Brown lie to the Court when he stated that everything that was filed pro se by the Defendant has been deemed “hybrid representation”?

Proposed answer: Affirmative

When Atty. Brown was served with the Defendant’s civil filing of a “Rule to Show Cause and Petition in support of why Habeas Corpus relief should not be Granted” on July 6, 2015, did he contact the Defendant to discuss the merits of her claim that she never received her (72) hour Bench Warrant hearing and that the Bench Warrant expired after (72) hours?

Proposed answer: Negative

Did Atty. Brown file a Writ of Habeas Corpus and intentionally, with deliberate indifference to his duty and his client’s best interest in terms of being released from prison, omit that his client did not receive her (72) hour Bench Warrant hearing before a judicial officer and that the Bench Warrant had expired, thereby clearing the way for her release?

Proposed answer: Affirmative

Did Atty. Brown file a Writ of Habeas Corpus and intentionally, with deliberate indifference to his duty and his client’s best interest in terms of being released from prison, omit that his client has been incarcerated for more than six months and has a right at law to nominal bail?

Proposed answer: Affirmative

Did Atty. Brown intentionally withhold a court order from the Defendant dated July 31, 2015, that scheduled a hearing on her civil Motion for Rule Absolute, relating to her civil filing of a petition for habeas corpus relief, for August 5, 2015, resulting in the Defendant appearing in Court on August 5, 2015 absent notice that her Motion was going to be argued?

Proposed answer: Affirmative

Did Atty. Brown intentionally withhold from the Defendant a copy of the Commonwealth’s Motion to Deny and Dismiss the Defendant’s petition for habeas corpus relief that was filed and served upon him on July 22, 2015, resulting in the Defendant appearing in Court on August 5, 2015, unaware of the contents of the Commonwealth’s Motion and having no answer to said Motion on the record or being able to respond to its assertions and allegations?

Proposed answer: Affirmative

Did Atty. Brown advise the Defendant in writing that if she challenges the revocation of her bail in any manner, it may result in her civil filing being unsuccessful?

Proposed answer: Affirmative

Did Atty. Brown remain silent when Atty. Nick Kravitz appeared at the August 5, 2015 hearing and argued in opposition to the Defendant’s Motion for Rule Absolute, relating to her civil Rule and Petition for habeas corpus relief having never entered an appearance on the civil record and having never filed an answer to the Defendant’s Rule and Petition for habeas corpus relief, and did he remain silent on advising his client that Kravitz was going to appear to present opposing argument, resulting in the Defendant being ambushed by Kravitz’s appearance and argument?

Proposed answer: affirmative

Did Atty. Brown conceal his political and close friendship ties with Kenneth McDowell, former Tax Collector and County Controller, whom the Defendant’s paramour, Joseph Pilchesky, repeatedly exposed publicly as notoriously incompetent and corrupt, and a deadbeat father, and a well-known town drunkard, and filed a Quo Warranto action to remove him from office citing failure to qualify to hold office, to the benefit of McDowell losing re-election, which if disclosed, the Defendant would have immediately filed a Motion to Supplement Counsel?

Proposed answer: Affirmative

Has Atty. Brown repeatedly violated the Rules of Professional Conductat 8.4 relating to his requirement to provide honest and ethical representation?

Proposed answer: Affirmative

Did Atty. Brown acted to ensure that the Defendant fully participated in her own defense and understood any and all strategies he intended to present to a jury?

Proposed answer: Negative

Has the communications between Atty. Brown and the Defendant irreconcilably broken as the result of Atty. Brown’s unethical and dishonest representation of the Defendant’s best interests?

Proposed answer: Affirmative

Is the Defendant in fear of Atty. Bernie Brown as the result of his repeated acts of dishonesty and unethical conduct?

Proposed answer: Affirmative

Should Atty. Brown be immediately removed as Defendant’s counsel for the reasons articulated, all of which exist on the record?

Proposed answer: Affirmative

Will the Defendant be extremely and unfairly prejudiced and punished if Atty. Brown is permitted to continue to represent her?

Proposed answer: Affirmative

Has the Defendant’s right to effective, honest and ethical representation been compromised by the dishonest and unethical conduct of Atty. Brown?

Proposed answer: Affirmative

Has the Defendant’s confidence and faith in Atty. Brown’s ability to represent her any further been destroyed by the dishonest and unethical conduct of Atty. Brown?

Proposed answer: Affirmative

Relevant procedural history

On April 28, 2014, Judge Vito Geroulo modified Tarapchak’s (Defendant) bail from $100,000.00 straight cash to $25,000.00, 10% permitted. See Exhibit “A”.
On or about May 5, 2014, $2,500.00 was deposited with the Clerk of Court of the Criminal Division on the Defendant’s behalf.
On May 5, 2014, Judge Vito Geroulo issued an IP Order directing the Defendant to be placed in the Lackawanna County House Arrest Program. See Exhibit “B”
Paragraph three (3) of the IP Order dated May 5, 2014, states as follows: “Pursuant to #61 P.S. Section 2141, if you fail to abide by all conditions set forth by the House Arrest Programs or fail to return to Official Detention, a Bench Warrant will be issued for your arrest and Escape Felony Charges will be filed. See Exhibit “B” at ¶ (3).
Paragraph four (4) of the IP Order dated May 5, 2014, states as follows: “This Order will serve as a temporary Bench Warrant until Formal Charges for Escape are filed by the County District Attorney’s Office. See Exhibit “B” at ¶ (4).
On October 23, 2014, the Defendant voluntarily appeared at House Arrest for the purpose of discussing her whereabouts on the previous evening when the electronic monitoring equipment indicated she stepped beyond electronic surveillance, at which time the Defendant was subjected to extensive interrogation by House Arrest Director, Patrick Lynn (Lynn), without the benefit of counsel, even after she repeatedly demanded that her counsel, Joseph P. Kalinowski, be summoned before speaking, and, she was interrogated absent a Miranda warning.
On October 23, 2014, after the Defendant was interrogated, she was arrested, handcuffed, taken into custody and re-incarcerated in the Lackawanna County Prison by the Lackawanna County House Arrest Program at the direction of the prosecutor, Deputy Attorney General, Mr. Robert LeBar, who was on the phone with Lynn during part of the interrogation.
On October 24, 2014, House Arrest Director Lynnand L.C.P. staffer, COKelly,conducted a Misconduct Hearing at the prison regarding allegations that the Defendant violated bail relating to House Arrest conditions, absent the presence of the Defendant at the hearing because she requested counsel to be present, but was denied.
On October 24, 2014, Lynn created and signed a document entitled, “MISCONDUCT HEARING REPORT” (Report), within which it was recommended that the “Defendant remain incarcerated pending action by Attorney General Office”. The Report bears no docket number, file number, incident number, reference number, commitment authority number, exhibit number, time stamp or certificate of service. The Report not addressed to any judicial officer of any court,or chief administrative agent or agency. The Report does not include a reference to anApplication for a Bench Warrant, a Bench Warrant for bail violations, or a Return of Service. The Report does not include any notice to the Defendant of an appeal or review process. The Report does not refer to or cite any legal authority which authorized and controlled the Misconduct Hearing, or authorized Lynn to conduct said hearing. The Report was not entered into the record. The Defendant was never served with a copy of a “Misconduct Hearing Report”, either by Lynn or her counsel, Joseph Kalinowski. The Report does not indicate that the Defendant was given notice of the Misconduct Hearing’s time and date, nor notice of a right to counsel, nor notice of the right to call witnesses. See Exhibit “C”, the Misconduct Hearing Report, included with a related letter to Judge Geroulo and an Incident Report by Jack Werner.
On October 24, 2014, the Office of the Attorney General faxed a Motion to Revoke Bail to the Defendant’s counsel, Joseph Kalinowski, and Judge Geroulo, within which its sole request was that the Defendant’s bail be revoked. The Motion was not accompanied with, nor incorporated or referred to, a Detainer. See Exhibit “D”, the Motion to Revoke.
At page page (3), ¶ (3), of the Motion to Revoke, the Commonwealth stated as follows: On October 23, 2014, Defendant was terminated from the House Arrest Program and returned to the Lackawanna County Prison, but without naming the judicial officer who terminated the Defendant from House Arrest.
On October 27, 2015, via letter (Letter), Lynn advised Judge Geroulo, the Probation Office and the Office of the Attorney General that he had:

Committed the Defendant to the Lackawanna Prison on October 23, 2014;
Terminated the Defendant from the House Arrest Program;
Conducted a Formal Misconduct Hearing anddetermined that the Defendant was guilty of violating House Arrest rules;
Advised that her termination from the House Arrest Program was warranted and justified; and
Advised that the Defendant should remain incarcerated.

The Letter did not include reference to an Application for a Bench Warrant for bail violations, a Bench Warrant or a Return of Service.
The Letter did not cite or refer to the legal authority Lynn relied upon to conduct the Misconduct Hearing, adjudicate the Defendant’s guilt and recommend and/or enforce continued incarceration. See Exhibit “C”, the letter, which is combined with a copy of the Misconduct Hearing Report and a Special Incident Report.
The Letter bears no time stamp from the Lackawanna County Clerk’s Office, nor is it addressed to a Lackawanna County Clerk’s Office, nor indicates that a Lackawanna County Clerk or the Defendant received a copy, and it was not entered on the docket under 14-CR-550.
By October 27, 2014, a Monday, as required in Bench Warrant arrests for bail violations, the Defendant had not yet received a (72) hour Bench Warrant hearing on her alleged bail violations, as required by 234 Pa. Code, Rule 536 (A) (1) (b) and Pa. Code 234 § 150 (A) (5), (a) and(b).
Pursuant to Pa. Code 234 § 150 (A) (7), the Bench Warrant expired after seventy-hours of the Defendant’s incarceration.
At no time was the Defendant served with a Bench Warrant or a Detainer, and neither exists on the record.
The Defendant has remained incarcerated since October 23, 2014.

Attorney Bernard Brown’s failure to address the Defendant’s deprivation of due process and libertyrights as relates to her re-incarceration on October 23, 2014 on a Bench Warrant for bail violations