J-S42009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GERALD GARZONE,

                            Appellant                 No. 2141 EDA 2014


                   Appeal from the PCRA Order June 20, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012746-2007


BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 27, 2015

       Appellant, Gerald Garzone, appeals from the June 20, 2014 order

denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541–9546. After careful review, we affirm.

       We previously summarized the facts of the crime in our disposition of

Appellant’s direct appeal, as follows:

             Appellants Louis and Gerald Garzone,2 [brothers,] were
       licensed funeral home directors who operated separate funeral
       homes in Philadelphia.    Appellants were also co-owners of
       Liberty Crematorium in Philadelphia with co-defendant James
       McCafferty. In early 2004, Appellants and Mr. McCafferty were
       approached by codefendant Michael Mastromarino,3 the founder
       and president of a business called Biomedical Tissue Services
       (“BTS”) that sold human tissue harvested from cadavers to
       tissue banks. Mr. Mastromarino had initially partnered with
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S42009-15


     funeral home directors in New York and New Jersey. These
     funeral home directors provided Mr. Mastromarino with cadavers
     from which he and his team of “cutters” could harvest tissue
     without the consent of the deceased or their next of kin and then
     sell to tissue banks. However, this arrangement required Mr.
     Mastromarino and his cutters to reconstruct the cadavers with
     PVC pipe after harvesting to conceal their activity and prepare
     the bodies for viewing and burial. Therefore, Mr. Mastromarino
     approached Appellants and Mr. McCafferty, who as owners of a
     crematorium, had access to cadavers destined for cremation and
     could provide these cadavers without concern for their post-
     harvesting condition.
           2
              Louis Garzone filed an appeal to this Court, which
           is docketed at 780 EDA 2009. We have addressed
           Louis Garzone’s appeal in a separate decision.
           3
            Michael Mastromarino filed an appeal to this Court,
           which is docketed at 3443 EDA 2008. We have
           addressed Mr. Mastromarino’s appeal in a separate
           decision.

           Appellants and McCafferty agreed to provide bodies that
     had been entrusted to their funeral homes and crematorium for
     cremation to Mr. Mastromarino, who would then harvest bones
     and tissue from the cadavers to sell to tissue banks.        In
     exchange, Mr. Mastromarino agreed to pay Appellants $1,000 for
     each cadaver. When Mr. Mastromarino and his cutters came to
     Philadelphia, Appellants would direct them to the bodies in the
     embalming rooms of their funeral homes.             There, Mr.
     Mastromarino and the cutters would remove the cadavers’ arms,
     legs, bones, ligaments, tendons, and skin, often leaving only a
     head and a bloody torso behind in a bag for cremation.

           Between visits from Mr. Mastromarino and his cutters,
     cadavers destined for harvesting would sit in an alley,
     unrefrigerated, for days.      Appellants never provided Mr.
     Mastromarino or his cutters with death certificates, identification,
     consent forms, or the names of the bodies’ next of kin. Although
     Mr. Mastromarino told Appellants that the tissue was destined for
     medical use and the cadavers had to be of individuals who were
     less than seventy-five years old and disease-free when they
     died, Appellants provided cadavers of individuals who were more
     than eighty years old and sick with cancer, H.I.V., and hepatitis

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      at the time of their passing.     Over the course of their
      arrangement with Mr. Mastromarino, Appellants provided more
      than 244 cadavers and received more than $245,000 in return.

            In September 2005, Mr. Mastromarino learned that the
      FDA was investigating his activities and instructed Appellants to
      burn their funeral homes to the ground to destroy the evidence
      of their enterprises.    Instead, Appellants incinerated their
      records in the crematory oven mere days before the arrival of
      FDA investigators, and told the investigators that their records
      had been destroyed by a flood.

             In addition to providing bodies to Mr. Mastromarino,
      Appellants pursued other criminal activity. Appellants defrauded
      the Pennsylvania Department of Public Welfare (“PDPW”) by
      filing false forms seeking reimbursement for providing funeral
      services to the indigent when they actually already had been
      compensated for those services by their clients. For each false
      claim, Gerald and Louis sought the maximum amount of $750
      and overall received $51,750 and $25,250, respectively.

      Trial Court Opinion, 6/1/09, at 2–4.

Commonwealth v. Garzone, 993 A.2d 306, 308–309 (Pa. Super. 2010)

(internal citations to the record omitted).

      The Commonwealth submitted this case to the Grand Jury in May of

2006. The Grand Jury recommended that multiple charges be filed against

Appellant, and he was arrested. Trial was scheduled, various of the other

co-defendants pled guilty and cooperated with the Commonwealth, and the

Commonwealth prepared its numerous witnesses for trial with an estimated

trial length of three months. Id. at 309. In connection with his participation

in the illegal harvesting and sale of human body parts, as well as filing the

false forms seeking reimbursement from the government for providing

funeral services for which he had already been paid, Appellant ultimately

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entered a guilty plea to corrupt organizations, criminal conspiracy, 244

counts of theft by unlawful taking (for theft of body parts), abuse of corpse,

recklessly endangering another person (“REAP”), and fraudulently obtaining

food stamps or other public assistance. On October 22, 2009, the trial court

sentenced Appellant to an aggregate sentence of eight to twenty years in

prison. N.T., 10/22/08, at 275–276. The trial court awarded the agreed-

upon aggregate amount of restitution, which was $144,000.00. Id. at 276.

The Commonwealth requested the costs of prosecution because, while

Appellant ultimately pled guilty, it had to prepare for trial; the trial court

declined to order those costs. Id. at 273.

      The Commonwealth filed a timely post-sentence motion, following

which the trial court directed Appellant to pay $90,028.00, representing the

salaries of the assistant district attorneys and county detectives as well as

the grand jury costs. On appeal, Appellant argued, inter alia, that the trial

court did not have the authority to order him to pay the expenses associated

with the district attorneys’ salaries, the county detectives’ salaries, or the

grand jury costs.    This Court vacated Appellant’s judgment of sentence

relating to the costs for the assistant district attorneys’ and county

detectives’ salaries but affirmed in all other respects. Garzone, 993 A.2d at

307–308.

      Upon a grant of Appellant’s petition for allowance of appeal addressing

the specific question of whether a trial court may order a convicted offender


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to pay costs to the Commonwealth representing salaries for hours worked by

assistant district attorneys and county detectives pursuant to 16 P.S. §

7708, our Supreme Court affirmed this Court.              Commonwealth v.

Garzone, 34 A.3d 67, 68 (Pa. 2012). The Court stated that “although our

reasoning does not track that of the panel below, we are in agreement with

its central holding that . . . the crimes in this case are particularly heinous,

[and] if the General Assembly intended to permit such recovery of regularly

paid salaries of assistant district attorneys and detectives to be costs

associated with the prosecution, the Legislature would have expressly done

so.” Id. at 80.

       Appellant filed a timely pro se PCRA petition on August 10, 2012.

Counsel was appointed, and he filed an amended petition on September 30,

2013, raising several claims of ineffective assistance of counsel. On March

6, 2014, the PCRA court held a hearing1 and issued a Pa.R.Crim.P. 907

notice of its intent to dismiss the petition. Appellant filed a response on April

21, 2014, and on June 20, 2014, the PCRA court dismissed Appellant’s PCRA

petition. Appellant filed a timely notice of appeal on July 15, 2014. Both the

trial court and Appellant complied with Pa.R.A.P. 1925.

       Appellant presents the following two questions for our review:

____________________________________________


1
   There are two identical transcripts in the record from this hearing, one
labeled Hearing Volume I and the other labeled Motion Volume I. Our
references to this hearing will be to Hearing Volume I.



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         1) Where trial counsel knew or should have known that much
            of the hysteria created at sentencing was based on wrong
            scientific evidence, especially after a decision in federal
            Multi-District Litigation amply demonstrated that fact, was
            Counsel ineffective for failing to file a motion to reconsider
            sentence?

         2) Where Appellant was prejudiced by pleading guilty to one
            count of recklessly endangering another person, pursuant
            to 18 Pa.C.S. §2705, as the plea was not knowing,
            intelligent and voluntary, was Counsel ineffective for
            advising Appellant to plead guilty to that count?

Appellant’s Substituted Brief at 3.

      When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012).                We

grant great deference to the PCRA court’s findings that are supported in the

record and will not disturb them unless they have no support in the certified

record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).

      In order to obtain collateral relief, a PCRA petitioner must establish by

a preponderance of the evidence that his conviction or sentence resulted

from one or more of the circumstances enumerated in 42 Pa.C.S. §

9543(a)(2). Instantly, Appellant asserted in his PCRA petition the existence

of ineffective assistance of counsel pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).

To plead and prove ineffective assistance of counsel, a petitioner must

establish: (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice

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resulted from counsel’s act or failure to act. Rykard, 55 A.3d 1177, 1189–

1190 (Pa. Super. 2012).      A claim of ineffectiveness will be denied if the

petitioner’s   evidence   fails   to   meet    any   one   of   these   prongs.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010); Commonwealth

v. Barnett, ___ A.3d ___, 2015 PA Super 162 (Pa. Super., filed July 29,

2015). “We do not employ a hindsight analysis in comparing trial counsel’s

actions with other efforts he may have taken.” Commonwealth v. Stultz,

114 A.3d 865, 881 (Pa. Super. 2015).          Moreover, counsel is presumed to

have rendered effective assistance.      Commonwealth v. Montalvo, 114

A.3d 401, 410 (Pa. 2015). We have explained that trial counsel cannot be

deemed ineffective for failing to pursue a meritless claim. Commonwealth

v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

      Appellant’s ineffective-assistance-of-counsel claims are based upon

Multi-District Litigation (“MDL”), a civil proceeding in the federal district

court in New Jersey. That case consolidated all of the claims by Appellant’s

victims, who were recipients of the stolen bone tissue, as well as relatives of

the deceased donors, against all of the tissue-distribution companies that

purchased tissue samples from BTS.       Summary judgment in that case, In

re:   Human Tissue Products Liability Litigation, 582 F.Supp.2d 644

(D.N.J 2008), was granted on October 22, 2008, the day Appellant was

sentenced in the instant case.     Appellant contends herein that the federal

decision proves that the diseased parts he stole posed no risk to the


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recipients and demonstrated that the fears of the tissue recipients that they

could contract disease from the tissues were irrational and not grounded in

science. Appellant avers that plea counsel knew or should have known of

the federal decision and was ineffective for failing to file a motion for

reconsideration of sentence and in failing to advise Appellant to seek to

withdraw his guilty plea to REAP.

       While acknowledging that the MDL opinion was not binding authority,

Appellant’s Brief at 19, 24, Appellant suggests the scientific evidence

presented in the federal case “would have debunked the hysteria that

surrounded the sentencing.”      Id. at 19.      Appellant asserts that counsel’s

action prevented the court from having “accurate information at sentencing.”

Id. at 27. Appellant maintains that without the scientific evidence presented

in the federal litigation, Appellant could not “have possibly received a fair

sentence.” Id. at 21. The Commonwealth pointedly responds that Appellant

faced maximum penalties of up to 1,822 years in prison, the Commonwealth

had argued for a sentence of thirty-five to seventy years of imprisonment,

and the court imposed a sentence of eight to twenty years of incarceration.

N.T.   Hearing   Vol.   I,   3/6/14,   at   8;   Commonwealth     Brief   at   11.

Comparatively, co-defendant Michael Mastromarino received a sentence of

twenty-five to fifty years in prison. N.T. Hearing Vol. I, 3/6/14, at 10.

       Regarding this issue, the PCRA court stated as follows:

            First, defendant’s claim that the MDL decision provided
       “answers” to scientific issues at issue at sentencing in the case

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J-S42009-15


     at bar has no basis in the law. Decisions by federal courts
     inferior to the United States Supreme Court are not binding upon
     Pennsylvania courts. Commonwealth v. Clark, 710 A.2d 31, 39
     (Pa. 1998); Commonwealth v. Fahy, 737 A.2d 214, 221 (Pa.
     1999) (“It is axiomatic that decisions of our federal brethren are
     not binding on this court.”). While federal judicial decisions may
     be looked to for guidance on interpretation of federal law, federal
     opinions are not facts, but are analysis of facts as it applies in a
     particular case. Clark, 710 A.2d at 39; Commonwealth v. Watts,
     23 A.3d 980, 987 (Pa. 2011). Accordingly, Judge Martini’s
     decision on a summary judgment motion pending in federal civil
     litigation was not evidence relevant to the sentencing decision of
     this Court.

            Moreover, contrary to defendant’s claim, the MDL decision
     did not resolve, even in the federal litigation, the issue of the
     risk to victims who received the diseased tissue stolen by
     defendant. The specific question before the federal court on the
     summary judgment motion was “whether Plaintiffs’ experts have
     reliably concluded that the diseases at issue can be transmitted
     beyond thirty days and that the incubation periods for HBV, HCV,
     and HIV are beyond six months.”2 Id. at 655. The district court
     concluded:
                 2
                   HBV, HCV, and HIV stand for Hepatitis B
                 Virus, Hepatitis  C    Virus,   and   Human
                 Immunodeficiency Virus, respectively.

           (1) Unprocessed bone tissue and bone paste stored
           at room temperature for thirty (30) days or more is
           not capable of transmitting HBV, HCV, HIV, syphilis,
           or cancer;

           (2) Unprocessed bone tissue and bone paste is not
           capable of transmitting prion disease;

           (3) Federal plaintiffs who have tested negative for
           HBV, HCV, HIV, and syphilis more than six (6)
           months after their bone tissue or bone paste
           transplant  surgery     cannot  establish  general
           causation with respect to HBV, HCV, HIV, and
           syphilis.




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J-S42009-15


     Id. at 692. The court further specifically stated that it was not
     deciding any further issues, and did not grant complete
     summary judgment to the civil suit defendants. Id. Accordingly,
     the MDL decision did not address the risk to the tissue recipients
     who received materials stored for less than 30 days, the risk to
     the tissue recipients of contracting one of the specified diseases
     through tissue other than bone or bone paste, or any of the
     other numerous medical risks to patients from receiving diseased
     and inferior tissue unrelated to the specific diseases addressed in
     the summary judgment motion.

             In addition, and perhaps most importantly, the arguments
     that were presented to Judge Martini were presented to, and
     considered by, the sentencing court in determining defendant’s
     sentence. In particular, the sentencing memorandum filed on
     behalf of co-defendant Louis Garzone forcefully argued that the
     “indisputable scientific consensus exists that defendant’s deeds
     did not affect the health or safety of any person,” based upon
     the arguments advanced by the civil defendants in the MDL
     litigation. See Louis Garzone’s Sentencing Memorandum at pp.
     10-11. Counsel even attached as an exhibit to his sentencing
     memorandum, for the review and consideration of this Court, the
     44 page memorandum from the defense in the MDL case setting
     forth the basis for Judge Martini’s decision.

           Finally, the Court can state unequivocally that the
     presentation of the MDL decision would not, in any manner, have
     caused the Court to give defendant a more lenient sentence.
     The aggregate sentence imposed by the Court took into account
     every bit of mitigating evidence presented by the Garzones,
     including the scientific evidence from the MDL litigation, and
     was, under the remarkable circumstances of this case, a
     generous sentence for defendant.

           Accordingly, the record establishes that the MDL decision
     did not give rise to new information that would bear upon the
     Court’s sentencing decision. For that reason, it is clear that no
     prejudice resulted from counsel’s failure to file a motion for
     reconsideration of sentence based on the MDL decision.
     Therefore, the Court properly found that counsel’s failure to file a
     motion for reconsideration did not deprive defendant of effective
     assistance of counsel.

PCRA Court Opinion, 10/3/14, at 6–8.

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J-S42009-15


      While Appellant refers to the MDL decision as scientific evidence, we

agree with the Commonwealth and the PCRA court that the decision is not

evidence; rather, it is a non-binding legal conclusion “rendered by a judge in

a different jurisdiction” in civil litigation. Commonwealth’s Brief at 13 (citing

PCRA Court Opinion, 10/3/14, at 8). Moreover, Appellant cannot establish

prejudice in this matter. Appellant is seeking resentencing. The PCRA court

clearly stated that it had the information presented in the federal litigation

because counsel for Louis Garzone appended it to his sentencing brief, the

studies were compelling, and they were the reason the lower court imposed

the lenient sentence it did instead of “the 35 to 70 years that was asked for

by the Commonwealth.” N.T. Hearing Vol. I, 3/6/14, at 10. The PCRA court

advised that the forgone post-sentence motion “wouldn’t have mattered,”

because Appellant “made out so well, he should be kissing the ground every

day . . . and thanking [plea counsel] for extricating him from a case with an

eight to 20 year sentence for which he’s very fortunate he’s not spending

another 20 years in prison for.” Id. at 11.

      [T]o satisfy the prejudice prong, it must be demonstrated that,
      absent counsel’s conduct, there is a reasonable probability that
      the outcome of the proceedings would have been different.
      Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa.
      Super. 2014). If it has not been demonstrated that counsel’s act
      or omission adversely affected the outcome of the proceedings,
      the claim may be dismissed on that basis alone, and the court
      need not first decide whether the first and second prongs have
      been met.




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Commonwealth v. Perez, 103 A.3d 344, 348 (Pa. Super. 2014). Even if

plea counsel had filed the post-sentence motion, Appellant would not have

received a lesser sentence.        Thus, he has not established that but for the

alleged error of counsel, there is a reasonable probability that the outcome

of the proceeding would have been different.

       Appellant next argues that the guilty plea to REAP was not knowing,

intelligent, and voluntary, and plea counsel rendered ineffective assistance

for advising Appellant to plead guilty to that count.2 We rely on the PCRA

court’s reasoning, as follows:

             Defendant next claims that trial counsel was ineffective, as
       he “should have sought to withdraw the plea as to the REAP
       count because the sentence was based on inaccurate information
       and/or because the MDL opinion was newly discovered evidence
       which Counsel should have presented to the Court …. Counsel
       should have sought to withdraw a plea to the REAP count based
       on this newly discovered evidence.” Statement of Errors at ¶ 2.

       [T]he MDL decision was not evidence of any kind, but rather a
       legal conclusion rendered by [a] judge in a different jurisdiction
       in civil litigation. Accordingly, any motion premised upon the
       MDL decision as “newly discovered evidence” would have been
       frivolous. . . .

             Moreover, the legal conclusions set forth in the MDL
       decision, even if considered to be “evidence,” would not
       undermine defendant’s guilty plea to REAP. To be guilty of
       REAP, a person must “recklessly engage in conduct which places
       or may place another person in danger of death or serious bodily
       injury.” 18 Pa.C.S. § 2705. As stated above, the MDL decision
       explicitly limited its ruling to the risk of specific communicable
____________________________________________


2
  Significantly, there was no further penalty imposed on the REAP charge.
N.T. Sentencing, 10/22/08, at 275–276.



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     diseases transmitted to recipients who received bone or bone
     paste tissue stored at room temperature for more than 30 days.
     It did not purport to address other risks to patients from
     receiving the diseased and substandard tissue, including the
     risks of contracting the specified diseases through tissue other
     than bone or bone paste, or any risks at all to patients who
     received tissues stored for less than 30 days.         Defendant
     admitted to harvesting aged and diseased tissues that he caused
     to be transmitted to unknowing medical providers who used that
     tissue to treat unknowing patients. Nothing in the MDL decision
     undermined the compelling evidence that this conduct provided
     grave risks to tissue recipients.

                                     * * *

            Defendant’s Statement of Errors does not specify the
     advice that he received from trial counsel that is alleged to be
     flawed. Assuming that the flawed advice was that he was guilty
     of REAP notwithstanding the MDL decision, then his argument
     should be rejected for the reasons set forth in section III(B),
     above. As stated there, the MDL decision in no way undermined
     defendant’s guilt of REAP. To the extent that defendant’s claim
     is premised upon some other unspecified flawed advice, the
     Court is unable to address the claim due to lack of specificity.
     See, e.g., Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa.
     Super. 2008), app. denied, 964 A.2d 893 (Pa. 2009) (where a
     defendant makes a vague and generalized objection on appeal
     that leaves the trial court to guess at his claims, those claims are
     deemed to have been waived).

PCRA Court Opinion, 10/3/14, at 8–10.

     In his appellate brief, Appellant focuses on his state of mind,

suggesting that the PCRA court failed to address his claim that he lacked the

necessary mens rea for REAP because “there was not an actual present

ability to inflict harm nor was there any evidence that actual physical harm

had ever been inflicted upon anyone.”        Appellant’s Brief at 28.       Thus,

Appellant contends that counsel should have either counseled Appellant not


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to plead guilty to REAP or sought to withdraw the plea to REAP. Id. As the

Commonwealth poses, that precise claim was not advanced in Appellant’s

Pa.R.A.P. 1925(b) statement and therefore is waived. Commonwealth v.

Riggle, ___ A.3d ___, 2015 PA Super 147 (Pa. Super., filed July 7, 2015).

      Even if not waived, the issue lacks merit.    The guilty plea colloquy

revealed that Appellant knew the harvested tissue was to be sold for

transplantation into people and that the cadavers were required to be

individuals under seventy-five years old who did not have certain diseases.

Despite this knowledge, Appellant provided bodies of people in their “late

80s” who “were riddled with cancer and infected with . . . HIV and hepatitis”;

he did not disclose the identities of the bodies; and the bodies he provided

“were not fresh,” as was required for safe transplantation. N.T. Guilty Plea,

9/2/08, at 27–32. Appellant acknowledged under oath that the substance of

the factual summary was true and stated that he was pleading guilty

because he was guilty. Id. at 42.

      Appellant now relies upon a statement from Lee Cruceta, a co-

conspirator, that the “processing performed by RTI and others made it

impossible to transmit disease from transplanted bone.” Appellant’s Brief at

30. In pertinent part, the statement upon which Appellant relies, attached

to his amended PCRA petition, is as follows:

      [Question:] While you were at the Philadelphia Funeral homes
      did you ever have any conversations about where tissue would
      go when you left?


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      [Answer:] Yes. I had a conversation with [Appellant] where he
      asked where the tissue would go and I told him it would be used
      for transplantation. It would be sent to a processing [company]
      to be sterilized, processed and used in various orthopedic
      procedures.

      [Question:] Did you have any other conversations regarding
      changes that had or would occur in the harvesting procedures of
      tissue at the Philadelphia Funeral Homes?

      [Answer:] Yes, I had a conversation with [Appellant] about how
      when we first started we would harvest certain tissues (“long
      bones”] and use small incissions. Now we were skin, spines and
      more tissue. He felt if [co-defendant] Michael [Mastromarino]
      was making more money then He ([Appellant]) should be getting
      more money. He was talking to me to have me tell Michael
      about it.

Amended PCRA petition, 9/30/13, at Exhibit B, pp. 2–3; Appellant’s Brief at

30.

      This statement, which was available to Appellant when he pled guilty,

does not negate the facts read into evidence during the plea colloquy, nor

does it show that Appellant believed the tissue was safe. Rather, it confirms

that Appellant knew it was being used for transplantation, and that his co-

conspirators had begun harvesting skin, spines, and tissues other than

bones. We conclude the issue lacks arguable merit.

      Order affirmed.

      Justice Fitzgerald did not participate in the consideration or decision of

this case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2015




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