J-S48012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRIAN JOSEPH PRESKI                        :
                                               :
                       Appellant               :   No. 255 MDA 2017

                  Appeal from the PCRA Order January 9, 2017
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002583-2010


BEFORE:      OTT, J., STABILE, J., and PLATT*, J.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 12, 2017

        Brian Joseph Preski appeals from the order entered January 9, 2017, in

the Dauphin County Court of Common Pleas denying, as untimely, his first

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1    Preski seeks relief from the judgment of sentence of 24 to 48

months’ imprisonment, followed by five years’ probation, and $1,000,000.00,

in restitution, imposed on March 21, 2012, after Preski pled guilty to three

counts of conflict of interest, two counts of theft of services, and five counts

of criminal conspiracy.2 On appeal, Preski contends: (1) the PCRA court erred

in denying his petition as untimely when he alleged facts sufficient to invoke

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2   See 65 Pa.C.S. § 1103(a), and 18 Pa.C.S. §§ 3926(a) and 903, respectively.
J-S48012-17



the newly discovered facts exception to the time bar; (2) the PCRA court erred

in denying a petition for recusal when he alleged the Office of the Attorney

General (“OAG”) improperly influenced the judge’s former law clerk; and (3)

the portion of his sentence requiring him to pay restitution to the

Commonwealth is illegal pursuant to Commonwealth v. Veon, 150 A.3d 435

(Pa. 2016). For the reasons below, we affirm in part, and reverse in part.

      The facts and procedural history of this appeal are as follows. Preski

was chief of staff for former Pennsylvania Speaker of the House John Perzel.

In 2009, he was one of multiple defendants, including Perzel and former House

Representative Brett Feese, indicted by a grand jury and charged in

connection with a scandal known as “Computergate.” In Feese’s direct appeal,

a panel of this Court described the activities that led to the charges as follows:

      ‘Computergate[]’ [was] a scheme in which taxpayer funds,
      employees, and other resources were misused for partisan
      campaign purposes by elected members of the Pennsylvania
      House of Representatives (“House”), and, in particular, by
      members of the House Republican Caucus (“HRC”), from 2001–
      2007. The misused government resources were directed toward
      the purchase and implementation of technological services,
      equipment, and data that permitted the analysis of individual
      voter information for use in political campaigns. Emerging mobile
      communication technologies designed for political campaign
      workers (“TelStar”) were integrated with massive databases of
      voter data (“Blue Card”) to provide campaign operatives with
      extensive capabilities to identify and mobilize voters for partisan
      get-out-the-vote operations and to facilitate direct messaging of
      information of interest to individual voters or particular groups of
      voters.

      … [T]he HRC used taxpayer funds to pay outside contractors to
      implement and provide ongoing support for these programs from
      2001 until 2006. Contractors … worked in tandem with taxpayer


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J-S48012-17


      funded legislative employees from the Republican Information
      Technology Services (“RITS”) to develop, implement, maintain,
      and integrate TelStar and Blue Card.

Commonwealth v. Feese, 79 A.3d 1101, 1103–1104 (Pa. Super. 2013), as

corrected (Jan. 16, 2014), appeal denied, 94 A.3d 1007 (Pa. 2014). Most of

the co-defendants, including Perzel, pled guilty before trial. However, Preski,

Feese, and Feese’s former secretary, Jill Seaman, proceeded to trial on

September 28, 2011, prosecuted by the OAG. Six days into trial, on October

5, 2011, Preski entered a guilty plea to charges of conflict of interest, theft of

services, and criminal conspiracy. On March 21, 2012, he was sentenced to

an aggregate term of 24 to 48 months’ imprisonment, followed by five years’

probation. In addition, Preski was directed to pay more than $30,000.00 in

fines, and $1,000,000.00 in restitution. He did not file a direct appeal.

      Rather, on October 9, 2015, Preski filed the instant PCRA petition, his

first, asserting he was entitled to relief based on newly discovered facts,

specifically, prosecutorial misconduct by the OAG. He claimed: (1) “multiple

witness   statements    and   other   evidence    containing   exculpatory    and

impeachment evidence were improperly suppressed or destroyed by the

OAG[;]” and (2) the OAG violated his right to a fair and impartial trial by

“offering, assisting in the procurement of, and ultimately, providing

employment to the trial court’s Judicial Law Clerk during the time Preski’s case

was pending before the Court, while that Clerk was integrally involved in the

adjudication of material issues in Preski’s case.”         Petition Under Post

Conviction Relief Act, 10/9/2015, at ¶¶ 19, 21. Thereafter, on December 4,


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2015, Preski filed a motion seeking recusal of the PCRA judge (who had

presided over his trial and guilty plea), and reassignment to an out-of-county

judge.    He alleged, inter alia, that the testimony of the judge would be

necessary to prove his claim regarding the OAG’s improper solicitation of the

judge’s former law clerk. See Motion for Recusal and for Reassignment to an

Out-Of-County Judge, 12/4/2015, at ¶ 10. Preski subsequently filed a motion

to compel discovery seeking the disclosure of all ex parte emails between the

OAG prosecutors and the judges who presided over the grand jury proceedings

and trial.3 See Motion to Compel Discovery from the Office of the Attorney

General, 12/18/2015, at ¶ 1.

       On May 13, 2016, the PCRA court issued notice of its intent to dismiss

the petition without first conducting an evidentiary hearing pursuant to

Pa.R.Crim.P. 907. That same day, the court entered two additional orders,

one denying Preski’s motion seeking recusal of the PCRA judge, and the other

denying Preski’s motion to compel discovery. On January 9, 2017, the court

dismissed Preski’s petition as untimely filed. This appeal followed.4
____________________________________________


3  Preski’s request was based upon the relationship between the OAG
prosecutor, Frank Fina, and Judge Barry Feudale, who supervised the
“Computergate” grand jury. In November of 2015, the Supreme Court
removed Judge Feudale as a senior judge after determining he leaked
confidential information from the sealed proceedings to the press. See Motion
to Compel Discovery from the Office of then Attorney General, 12/18/2015,
at ¶ 7.

4 Preski filed a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b), on the same day as his notice of appeal. On March 27,



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       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).         Further, a PCRA court may

dismiss a petition “without an evidentiary hearing if there are no genuine

issues of material fact and the petitioner is not entitled to relief.” Id. (citations

omitted).

       Here, the PCRA court concluded Preski’s petition was untimely filed. See

PCRA Court Memorandum Order (Petition), 5/13/2016, at 2-7.

       The PCRA timeliness requirement … is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
       753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
       untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S.Ct. 2695 (U.S. 2014).

       A PCRA petition must be filed within one year of the date the underlying

judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). Preski’s judgment of

sentence was final on April 20, 2012, 30 days after he was sentenced and the

time for filing a direct appeal expired. See id. at § 9545(b)(3); Pa.R.Crim.P.



____________________________________________


2017, the PCRA court issued a Statement in Lieu of Memorandum Opinion, in
which it relied upon the two memorandum orders it had previously filed on
May 13, 2016, dismissing the PCRA petition and motion for recusal. See PCRA
Court Statement in Lieu of Memorandum Opinion, 3/27/2017.

                                           -5-
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720(A)(3). Therefore, Preski had until April 20, 2013, to file a timely petition,

and the one before us, filed more than two years later, is patently untimely.

      Nevertheless, an untimely PCRA petition may still be considered if one

of the   three time-for-filing exceptions applies.         See 42 Pa.C.S. §

9545(b)(1)(i)-(iii).   A PCRA petition alleging any of the exceptions under

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim could

have first been brought. 42 Pa.C.S. § 9545(b)(2).

      In the case sub judice, Preski asserts his petition meets the timeliness

exception for newly discovered facts found in Section 9545(b)(1)(ii).       See

Preski’s Brief at 24-32.   This Court has previously explained the interplay

between the newly discovered facts exception to the timeliness requirements

and a substantive collateral claim of after-discovered evidence as follows:

             The timeliness exception set forth in Section 9545(b)(1)(ii)
      requires a petitioner to demonstrate he did not know the facts
      upon which he based his petition and could not have learned those
      facts earlier by the exercise of due diligence. Commonwealth v.
      Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1271 (2007). Due
      diligence demands that the petitioner take reasonable steps to
      protect his own interests. Commonwealth v. Carr, 768 A.2d
      1164, 1168 (Pa. Super. 2001). A petitioner must explain why he
      could not have learned the new fact(s) earlier with the exercise of
      due diligence. Commonwealth v. Breakiron, 566 Pa. 323, 330–
      31, 781 A.2d 94, 98 (2001); Commonwealth v. Monaco, 996
      A.2d 1076, 1080 (Pa. Super.2010), appeal denied, 610 Pa. 607,
      20 A.3d 1210 (2011).         This rule is strictly enforced.    Id.
      Additionally, the focus of this exception “is on the newly
      discovered facts, not on a newly discovered or newly willing source
      for previously known facts.” Commonwealth v. Marshall, 596
      Pa. 587, 596, 947 A.2d 714, 720 (2008) (emphasis in original).

         The timeliness exception set forth at Section 9545(b)(1)(ii) has
      often mistakenly been referred to as the “after-discovered

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       evidence” exception. Bennett, supra at 393, 930 A.2d at 1270.
       “This shorthand reference was a misnomer, since the plain
       language of subsection (b)(1)(ii) does not require the petitioner
       to allege and prove a claim of ‘after-discovered evidence.’” Id.
       Rather, as an initial jurisdictional threshold, Section 9545(b)(1)(ii)
       requires a petitioner to allege and prove that there were facts
       unknown to him and that he exercised due diligence in discovering
       those facts. See 42 Pa.C.S.A. § 9545(b)(1)(ii); Bennett, supra.
       Once jurisdiction is established, a PCRA petitioner can present a
       substantive after-discovered-evidence claim. See 42 Pa.C.S.A. §
       9543(a)(2)(vi) (explaining that to be eligible for relief under PCRA,
       petitioner must plead and prove by preponderance of evidence
       that conviction or sentence resulted from, inter alia, unavailability
       at time of trial of exculpatory evidence that has subsequently
       become available and would have changed outcome of trial if it
       had been introduced). In other words, the “new facts” exception
       at:

          [S]ubsection (b)(1)(ii) has two components, which must be
          alleged and proved. Namely, the petitioner must establish
          that: 1) the facts upon which the claim was predicated were
          unknown and 2) could not have been ascertained by the
          exercise of due diligence. If the petitioner alleges and
          proves these two components, then the PCRA court has
          jurisdiction over the claim under this subsection.

       Bennett, supra at 395, 930 A.2d at 1272 (internal citations
       omitted) (emphasis in original). Thus, the “new facts” exception
       at Section 9545(b)(1)(ii) does not require any merits analysis of
       an underlying after-discovered-evidence claim. Id. at 395, 930
       A.2d at 1271.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015)

(emphasis in original), appeal denied, 125 A.3d 1197 (Pa. 2015). Accordingly,

before we may consider whether Preski’s substantive claim of after-discovered

evidence merits relief,5 we must first determine whether he has established
____________________________________________


5 To obtain relief based upon a substantive claim of after-discovered evidence,
a petitioner must demonstrate the evidence:




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“there were facts unknown to him and that he exercised due diligence in

discovering those facts.” Id. at 176.

       The crux of Preski’s underlying claim is that the OAG committed

prosecutorial misconduct by concealing or destroying the witness statements

and/or proffer notes, containing exculpatory and/or impeachment evidence,

from 94 witnesses who testified before the investigating grand jury.              See

Petition Under Post Conviction Relief Act, 10/9/2015, at ¶¶ 19, 25. By way of

background, Preski and his co-defendants knew in 2011 that the OAG,

“contrary to its policy, destroyed potentially material evidence in witness

interview notes before transposition into the formal record of investigation”

and had filed a joint “pretrial motion to dismiss the charges due to

prosecutorial misconduct.” Feese, supra, 79 A.3d at 1128 (Concurring and

Dissenting Statement, Fitzgerald J.).6 The trial court later denied the motion
____________________________________________


       (1) could not have been obtained prior to the conclusion 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 of a witness; and (4) would likely result in a different
       verdict if a new trial were granted.

Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009) (quotation
omitted), cert. denied, 562 U.S. 857 (2010).

6 We note Preski contends his issues on appeal are closely related to those
raised by Feese in a PCRA petition filed in early September 2015. See Preski’s
Brief at 11. In fact, he insists the “evidence of prosecutorial misconduct”
presented in Feese’s petition was “previously unknown to him,” and, he
attached a copy of Feese’s petition to his own filing. Id. A panel of this Court
affirmed the denial of PCRA relief to Feese in an unpublished decision filed on
October 13, 2017. See Commonwealth v. Feese, ___ A.3d ___, 2017 WL
4570686 (Pa. Super. Oct. 13, 2017).


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without conducting an evidentiary hearing.       In co-defendant Feese’s direct

appeal, a panel of this Court found Feese’s claim that the interview notes were

destroyed in bad faith was speculative since “there is absolutely no evidence

of record that demonstrates that evidence favorable to [Feese] was destroyed

in this case that was not preserved in some form in the [record of

investigation].” Id. at 1115.

       Preski’s present claim, sparked by Feese’s PCRA petition filed in

September of 2015, is that he recently uncovered concrete evidence that the

OAG deliberately failed to include exculpatory statements by some of these

witnesses in its record of investigation. He purportedly attached to his petition

a verified statement by his attorney, detailing a telephone conversation the

attorney had with Lori Lochetto on September 30, 2015.7 Lochetto was an

____________________________________________


7 We note Preski averred that he attached a copy of counsel’s certification of
the Lochetto statement to his PCRA petition as Exhibit “C.” See Petition Under
Post Conviction Relief Act, 10/9/2015, at ¶ 34. Moreover, the PCRA court
indicated in its opinion that Preski “did attach” counsel’s certification regarding
the Lochetto interview to his petition as Exhibit “C.” PCRA Court Memorandum
Order (Petition), 5/13/2016. Nevertheless, the certified record transmitted to
this Court does not include this attachment. Furthermore, when a clerk from
our Middle District Prothontary’s office requested the missing document from
the Dauphin County Clerk of Court’s Office, she was informed this item was
not attached to the PCRA petition and not docketed in its office.

      We recognize it is the appellant’s burden to ensure all documents
necessary for our review are included in the certified record, and generally
“[a]n items does not become part of the certified record by copying it as part
of the reproduced record.” Commonwealth v. Pries, 861 A.2d 951, 952 n.2
(Pa. Super. 2004), appeal denied, 882 A.2d 478 (Pa. 2005). Nevertheless,
because both Preski and the PCRA court agree the certification was attached



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administrative assistant for both Preski and Perzel, and a witness in the grand

jury proceedings. According to counsel’s certification, (1) Lochetto repeatedly

told the OAG investigators that Preski did not engage in any improper conduct;

(2) the investigators were “frequently abusive, hostile and rude” towards her;

(3) the OAG did not ask her about any of her exculpatory statements during

her grand jury testimony; and (4) “one or more OAG investigators took

extensive hand-written notes of her interviews.”               Lochetto Certification,

10/8/2015, at 1-2. Preski insists Lochetto’s witness statement “identifies new

facts,” in particular, that the OAG either destroyed or concealed exculpatory

statements she made to the investigators. Preski’s Brief at 28.

        The PCRA court rejected Preski’s claim for three reasons. First, it found

counsel’s “certification” of Lochetto’s proposed testimony was insufficient to

verify her statement.         See PCRA Court Memorandum Order (Petition),

5/13/2016, at 6. However, we agree with Preski that counsel’s certification

of Lochetto’s proposed testimony, based upon his telephone conversation with

Lochetto, was sufficient to satisfy the certification requirement of 42 Pa.C.S.

§    9545(d)(1),8    which     would    justify    an   evidentiary   hearing.   See
____________________________________________


to the petition at some point, for purposes of our disposition, we will rely on
the document as it appears in the reproduced record. See id.

8   The statute provides, in relevant part:

        Where a petitioner requests an evidentiary hearing, the petition
        shall include a signed certification as to each intended witness
        stating the witness’s name, address, date of birth and substance



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Commonwealth v. Pander, 100 A.3d 626, 642 (Pa. Super. 2014) (“Simply

put, the certification requirement can be met by an attorney or pro se

petitioner certifying what the witness will testify regarding.”), appeal denied,

109 A.3d 679 (Pa. 2015).

       Second, the court determined the issue concerning the OAG’s

destruction of witness statements/proffer notes, was litigated and rejected in

co-defendant Feese’s direct appeal.            See PCRA Court Memorandum Order

(Petition), 5/13/2016, at 6. Again, we agree with Preski that this basis for the

court’s denial of his claim was in error. See Preski’s Brief at 31-32. As noted

supra, the Feese Court denied relief on this claim because it was “too

speculative,” explaining “there is absolutely no evidence of record that

demonstrates that evidence favorable to [Feese] was destroyed in this case

that was not preserved in some form in the [record of investigation].” Feese,

supra, 79 A.3d at 1114-1115. Here, Preski has obtained a statement from a

witness, which purportedly substantiates his claim that evidence favorable to

the defendants was concealed or destroyed by the OAG. Accordingly, this

issue is no longer “speculative” as the Feese Court determined.
____________________________________________


       of testimony and shall include any documents material to that
       witness’s testimony. Failure to substantially comply with the
       requirements of this paragraph shall render the proposed
       witness’s testimony inadmissible.

42 Pa.C.S. § 9545(d)(1).




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      However, the PCRA court provided a third basis for its denial of relief,

namely, that Preski failed to establish he acted with due diligence. See PCRA

Court Memorandum Order (Petition), 5/13/2016, at 7. The court opined:

             [Preski] fails to demonstrate that he did not know facts upon
      which he based his petition and makes no attempt to explain why
      he could not have learned of the new fact(s) earlier with the
      exercise of due diligence.       For example, [Preski’s] counsel
      attached a phone conversation he had with Ms. Lochetto, yet this
      Court does not see how [Preski] was unable to, through his
      exercise of due diligence, complete that phone call within the one-
      year requirement. [Preski] did not file the instant PCRA Petition
      until nearly two and [one-]half years after the date his judgment
      became final and now seeks to satisfy the 60 day newly discovered
      facts exception.

Id. at 7 (emphasis in original).

      We agree with the court’s third basis for the denial of PCRA relief. Preski

has failed to demonstrate he exercised any due diligence in uncovering this

purported prosecutorial misconduct prior to obtaining a copy of Feese’s PCRA

petition in September 2015. Rather, he maintains the PCRA court should have

considered the OAG’s deliberate concealment of Lochetto’s exculpatory

statements in determining whether he acted with reasonable diligence in

uncovering these new facts. Preski’s Brief at 30. Preski states:

      Having pled guilty and sitting in a prison cell, most likely
      contemplating nothing other than his release, “reasonable
      diligence” did not require Preski to begin mining thousands of
      pages of transcripts and documents searching for evidence of
      prosecutorial misconduct. Should Preski have found the contact
      information for all 183 Grand Jury witnesses and, with a prison
      phone card, begun working his way through the list, asking each
      who answered where Fina had extracted false testimony through
      threats of prosecution and long prison terms?



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Id. at 29-30.

      Preski’s excuse falls flat for several reasons. First, Preski provides no

authority for his proposition that his incarceration excused his obligation to

exercise due diligence in uncovering potentially exculpatory evidence. Indeed,

no such exception exists. Second, Preski’s implication that he had no basis to

question Ms. Lochetto before receiving Feese’s petition is specious. Preski and

Feese filed a joint motion before trial seeking dismissal of the charges based

on this same claim of prosecutorial misconduct. See Feese, supra, 79 A.3d

at 1128 (Concurring and Dissenting Statement by Fitzgerald, J.). Although

Preski did not have Lochetto’s statement at that time, certainly, he suspected

that questioning some of the grand jury witnesses might yield facts supporting

his claim.   Moreover, Lochetto was not simply one of “183 Grand Jury

witnesses” he could have contacted.      Preski’s Brief at 29.   She was not a

stranger, but rather, his former administrative assistant, a witness whom he

should have been able to easily contact, and who would have had direct

knowledge as to whether or not he engaged in improper conduct.          Preski

provides no excuse as to why he failed to contact her earlier concerning her

statements to the OAG investigators.

      As this Court made clear in Brown, supra, it was Preski’s burden to

establish both “there were facts unknown to him and that he exercised due

diligence in discovering those facts.”    Brown, supra, 111 A.3d at 176.

Because Preski failed to demonstrate he exercised due diligence in discovering

Lochetto’s statement, we agree with the conclusion of the PCRA court that he

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has failed to meet the “newly discovered facts” exception to the timing

requirements.

      Next, Preski contends the PCRA court erred in denying his recusal

request without first conducting a hearing or permitting discovery.        See

Preski’s Brief at 32. This request was based upon Preski’s claim that the OAG,

and in particular prosecutor, Frank Fina, recruited the court’s law clerk during

the trial for an employment position the clerk was not qualified to hold, in an

attempt to improperly influence the proceedings.       See id. at 34-35.     He

maintains that while his “evidence of a corrupted trial is circumstantial, the

evidence of Fina’s personal involvement in and facilitation of [Clark] Madden’s

employment is direct and to date undisputed.” Id. at 33. Moreover, Preski

alleges he first learned of this issue when he reviewed Feese’s PCRA petition

in September of 2015. See id. at 35.

      When considering a ruling on a recusal request, we must bear in mind:

         Our standard of review of a trial court’s determination not to
      recuse from hearing a case is exceptionally deferential. We
      recognize that our trial judges are “honorable, fair and
      competent,” and although we employ an abuse of discretion
      standard, we do so recognizing that the judge himself is best
      qualified to gauge his ability to preside impartially.

         The party who asserts that a trial judge should recuse bears
         the burden of setting forth specific evidence of bias,
         prejudice, or unfairness. “Furthermore, a decision by the
         trial court against whom the plea of prejudice is made will
         not be disturbed absent an abuse of discretion.”

Commonwealth v. Postie, 110 A.3d 1034, 1037 (Pa. Super. 2015) (citation

omitted).


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      In denying Preski’s recusal request in the present case, the PCRA court

opined:

             Upon review of the pleadings, [Preski] has failed to show
      this Court how he believes he will suffer bias, prejudice or
      unfairness in the consideration of his PCRA Petition by this Court.
      Additionally, although the PCRA Petition goes on at length about
      how he believes that this Court’s former law clerk was involved in
      potentially improper deeds which impacted [Preski’s] due process
      rights to a fair and impartial tribunal, he was not immediately
      concerned about any potential bias as the instant Motion was not
      filed until four (4) years from the date of his guilty plea.

            This Court fails to grasp what specific factors [Preski]
      believes impair this Court’s ability to be impartial other than the
      mere claim that a former law clerk applied for and was offered a
      job with the Office of Attorney General.            According to the
      averments in [Preski’s] Motion for Recusal, on October 6, 2011,
      [he] pled guilty and on October 26, 2011, the Human Resources
      Department again asked the former law clerk to complete his
      application’s job history section. Only on October 28, 2011,
      twenty-two days after [Preski] pled guilty … did the Human
      Resources department advise lead prosecutor Frank Fina that this
      Court’s former law clerk’s name had been added to the list of
      candidates for a position at OAG. Further, [Preski] has not pointed
      to a single act or occurrence whereby the application process
      involving a former law clerk and any allegations he is making in
      connection thereto, without more, amounts to such discernible
      bias that recusal is necessary. As such, we conclude that [Preski]
      has not satisfied his burden of showing bias, prejudice or
      unfairness that rise[s] to such a significant level to warrant recusal
      to sustain his motion.

PCRA Court Memorandum Order (Recusal), 5/13/2016, at 2-3 (emphasis in

original and footnotes omitted). Moreover, the PCRA court also stated it was

“unable to discern how [its] former law clerk taking a position with the OAG

‘compelled’ [Preski] to enter a guilty plea that was voluntary, knowing, and

intelligent.” Id. at 6.



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      Preski maintains, however, recusal of the PCRA court, President Judge

Richard A. Lewis, was necessary to prove his claim of improper influence. He

argues:

      To prove (or disprove) his charges of a corrupt proceeding, Preski
      requires evidence establishing both the full extent of ex parte
      contacts between Fina (or the OAG) and Madden, and Madden’s
      influence on Judge Lewis’ decisions. With respect to the latter
      particularly, Judge Lewis cannot both provide the facts and decide
      the facts – and only Judge Lewis knows the facts. That is what
      requires his recusal from this PCRA proceeding.

Preski’s Brief at 33.

      Again, we discern no abuse of discretion on the part of the PCRA court.

First, we find Preski’s desire to question the trial judge as nothing more than

a “fishing expedition.” Commonwealth v. Grove, ___ A.3d ___, ___, 2017

PA Super 286, *16 (Pa. Super. Aug. 31, 2017) (“[A]n evidentiary hearing is

not meant to function as a fishing expedition for any possible evidence that

may support some speculative claim”) (quotation omitted). Based solely on

the decision of the judge’s law clerk to apply for a position in the OAG during

the same time as his trial was proceeding, Preski assumes the OAG improperly

influenced the trial, and his subsequent decision to plead guilty, through its

recruiting and hiring of the clerk.    However, the “evidence” of the OAG’s

recruitment of Madden is slim. Rather, Preski’s accusations focus on Fina’s

ranking opinion of Madden as the “‘most qualified’ candidate on this list,

despite obvious deficiencies in Madden’s qualifications for the position. See

Preski’s Brief at 15. However, Fina’s high ranking of Madden as a potential

job candidate and Madden’s subsequent hiring occurred the month after Preski

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entered his plea. See id. More importantly, Preski fails to identify any specific

instance in which Madden may have improperly influenced Judge Lewis, which,

in turn, caused Preski to enter a guilty plea. Accordingly, no relief is warranted

on this claim.

      Lastly, Preski insists the restitution portion of his sentence is illegal

because the Pennsylvania Supreme Court has held the Commonwealth is not

a “person” entitled to restitution under the Pennsylvania Crimes Code.       See

Preski’s Brief at 37-39.   See also 18 Pa.C.S. §1106; Commonwealth v.

Veon, 150 A.3d 435 (Pa. 2016). We agree.

      Preliminarily, we note that we may consider Preski’s challenge to the

trial court’s authority to impose restitution outside the context of his untimely

PCRA petition. Indeed, this Court has recognized that the restitution statute,

particularly Section 1106(c)(3), permits “a defendant to seek a modification

or amendment of the restitution order at any time directly from the trial

court.”   Commonwealth v. Stradley, 50 A.3d 769 (Pa. Super. 2012)

(emphasis supplied) (finding defendant’s motion to vacate restitution order

filed 14 months after sentencing following guilty plea was not untimely motion

to modify sentence, and trial court had jurisdiction to address claim). See

also 18 Pa.C.S. § 1106(c)(3) (“The court may, at any time … alter or amend

any order of restitution made pursuant to paragraph (2), provided however,

that the court states its reasons and conclusion as a matter or record for any

charge or amendment to any previous order.”). Accordingly, we have held

“the statute creates an independent cause of action for a defendant to seek a

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modification of an existing restitution order.” Commonwealth v. Gentry,

101 A.3d 813 (Pa. Super. 2014).                Therefore, the untimeliness of Preski’s

petition does not preclude him for obtaining relief on this claim.9

       The restitution statute mandates that a “court shall order full restitution

… [r]egardless of the current financial resources of the defendant, so as to

provide the victim with the fullest compensation for the loss.” 18 Pa.C.S. §

1106(c)(1)(i) (emphasis supplied).               In Veon, supra, the Pennsylvania

Supreme Court held a Commonwealth agency10 was not a victim, as defined

under either the Crimes Code (18 Pa.C.S. § 1106(c)(1)(i)), or the Crime

Victims Act (18 P.S. § 11.103), nor did the agency reimburse a victim or pay

a third party on behalf of a victim.               Veon, supra, 150 A.3d at 454.

Accordingly, pursuant to Veon, “the Commonwealth cannot be a victim

eligible for restitution under 18 Pa.C.S.A. § 1106.”             Commonwealth v.

Berry, 167 A.3d 100, 110 (Pa Super. 2017).

       In the present case, following the holding in Veon, we agree the trial

court had no authority to direct Preski to pay $1,000,000.00 in restitution to



____________________________________________


9 We also note Preski did not raise this issue in the PCRA court, so that the
court did not have the opportunity to consider the legality of the restitution
award in light of Veon, a case that was decided after Preski’s sentencing.

10 The trial court directed Veon to pay restitution to the Pennsylvania
Department of Community and Economic Development following his
conviction for unlawfully diverting public resources. See Veon, supra, 150
A.3d at 438-441.



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the Commonwealth.11 Accordingly, we conclude Preski is entitled to relief on

this claim, and vacate the restitution portion of his sentence.

       Order affirmed in part, and reversed in part. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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11We note a panel of this Court, in an unpublished decision, granted relief to
one of Preski’s original co-defendants, John Perzel, on this very claim. See
Commonwealth v. Perzel, ___ A.3d ___, ___, 2017 WL 1278576 (Pa.
Super. 2017) (unpublished memorandum at *3).

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