J-S27021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
 GENNARO RAUSO                             :
                                           :
                     Appellant             :   No. 1792 EDA 2017

                    Appeal from the Order April 24, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                      No(s): CP-23-CR-0001821-2010


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.:                        FILED NOVEMBER 08, 2018

      Appellant, Gennaro Rauso, appeals from the April 24, 2017 order

denying his June 9, 2016 motion to vacate the August 10, 2011 order of

restitution. In addition, Appellant’s counsel has filed a petition to withdraw as

counsel and a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).               We permit

counsel to withdraw and affirm.

      The trial court summarized the extensive history of this case as follows:

            A criminal complaint was filed on September 23, 2009, by
      Corporal Christopher Kennedy, Norwood Police Department,
      charging Gennaro Rauso (hereinafter referred to as “Rauso”
      and/or [“Appellant”]) with, inter alia, theft by deception1 and
      deceptive business practices.2 On this same date (September 23,
      2009), the magisterial district judge issued for [Appellant] a bench
      warrant. . . .

            1   18 Pa.C.S. § 3922.
J-S27021-18


              2   18 Pa.C.S. § 4107.

                                          * * *

             On August 10, 2011, [Appellant] entered a counseled,
       negotiated guilty plea to Information B-Theft by Deception, a
       felony of the third degree, and Information E-Deceptive Business
       Practices, also a third degree felony. N.T. 8/10/11, pp. 11-13.
       The prosecution consistent with the plea agreement’s terms orally
       motioned, of-record, to amend its past filed criminal informations
       to recognize [K]arla Murray[1] as an additional victimized owner of
       property, who incurred a financial loss, and that Information E
       (deceptive business practices) also be amended to reflect an
       amount at issue over two-thousand ($2,000.00) dollars, as well
       as a resultant third degree felony gradation.                These


____________________________________________


1 Ms. Murray’s given name is misspelled throughout the record and appellate
briefs. N.T., 3/10/10, at 4. Also, for purposes of clarity, at the guilty plea
hearing, the Commonwealth stated as follows:

       There is restitution owed to [Karla] Murray in this matter, Your
       Honor, in the amount of $6,500. So the [c]ourt’s aware, that
       restitution was pre-paid by [Appellant] during the course of this
       proceeding, as been—being held in escrow by Court Financial
       Services. I do have a stipulation that’s signed by [defense
       counsel] and myself, and I would ask the [c]ourt to enter the
       stipulation as an Order of the [c]ourt, releasing that $6,500 funds
       to Ms. [Karla] Murray, who’s present in the courtroom here, Your
       Honor, along with the other victim in this matter, Ms. Brandy
       Murray. . . .

                                          * * *

       Your Honor, I need the record to be clear, I would need to make
       a Motion to amend the Informations that [Appellant] is pleading
       to. The victim’s name was in the Information list, Ms. Brandy
       Murray only. Property, the money put up for the rental of the
       house was actually both Ms. Brandy and [Karla] Murray’s
       property, so I would make a Motion to amend that Information as
       well.

N.T. (Guilty Plea), 8/10/11, at 5–6.

                                           -2-
J-S27021-18


     Commonwealth amendment applications were allowed, absent
     defense objection. N.T. 8/10/11, pp. 5-7. . . .

            Immediately subsequent to his entering this plea of guilty
     and his attorney waiving such an investigation, [Appellant] was
     sentenced wholly consistent with the lawyers’ plea negotiations as
     follows: Information B (Theft by Deception)-A term of eighteen
     (18) through thirty-six (36) months incarceration at a state
     correctional facility; and Information E (Deceptive Business
     Practices)-A fifteen (15) through thirty-six (36) month period of
     imprisonment at a state correctional institution. [Appellant] . . .
     was not entitled to any time served credit and was deemed for
     recidivism risk reduction incentive consideration13 ineligible,
     without defense opposition. N.T. 8/10/11, pp. 8, 22. Additionally,
     per the plea understanding, these sentences were directed to run
     consecutively to each other (Informations B and E), but the
     entirety of [Appellant’s] sentence at bar was ordered to be served
     concurrently with his June 20, 2011, sentence past imposed by
     the District Court of the Eastern District of Pennsylvania under
     docket, United States v. Rauso, No. DPAE 2: 10 CR 000406-001,
     an aggregate period of incarceration of one hundred sixty (160)
     months followed by three (3) years supervised release. See
     Certificate of Imposition of Judgment of Sentence. N.T. 8/10/11,
     pp. 20-22. . . .

           13   61 Pa.C.S. §§ 4501 et seq.

            No timely or post-sentence motions otherwise were lodged,
     including any pleading advancing a challenge to the sentence’s
     legality and/or a request to withdraw [Appellant’s] previously
     entered negotiated guilty plea. No direct appeal to the Superior
     Court of Pennsylvania was filed.

           In the course of his ongoing collateral litigation before this
     court,14 [Appellant] on June 9, 2016, lodged a Motion to Vacate
     August 10, 2011 Restitution Order [etc. and for the Return of Said
     Restitution], as well as a Brief in Support. . . .

           14  [Appellant] on July 16, 2012, lodged a self-
           represented Petition for Post Conviction Collateral
           Relief [(“PCRA”)]. See [Appellant’s] PCRA Petition
           dated July 16, 2012. This petition being his first such
           collateral pleading [Appellant] was entitled to
           counsel’s assistance. . . .

                                     -3-
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                    [Appellant] was previously court designated two
              (2) lawyers material to the PCRA proceedings.
              Following the respective breakdowns of attorney-
              client relations between [Appellant] and these
              lawyers, he per such an application was permitted to
              proceed pro se with . . . “standby counsel.” . . . N.T.
              8/28/15; Order dated September 1, 2015. See also
              Commonwealth v. Grazier, 552 Pa. 9, 12-13, 713 A.2d
              81, 82 (1998). See generally Pa.R.Crim.P. 121.

                     Following the filing of his initial collateral
              petition, [Appellant] lodged a plethora of various self–
              represented and a significantly lesser number of
              counseled pleadings during his PCRA litigation. . . .[2]

                    At the listing of June 14, 2017, inter alia,
              [Appellant] orally advanced, of-record, an application
              for the re-appointment of Post Conviction Relief Act
              counsel. N.T. 6/14/17.

                    Via an order dated June 15, 2017, this court
              designated     William    P.   Wismer,   Esquire    as
              [Appellant’s] collateral attorney and directed he file
                                               [3]

              an amended PCRA pleading. . . . This court through
              another order also of June 15, 2017, relatedly allowed
              that Mr. VanRensler was relieved of his past
              appointment as [Appellant’s] “standby counsel.” . . .

                                          * * *

                     [Appellant] on July 17, 2017, lodged his
              Amended, Counseled Petition for Post Conviction
              Relief. . . .

                   An evidentiary hearing as then scheduled in the
              above-captioned matter regarding [Appellant’s]


____________________________________________


2 The trial court listed forty-seven filings by Appellant dated from July 16,
2012, through July 17, 2017.

3 The PCRA court thus appointed three different counsel to represent
Appellant during the PCRA proceedings.

                                           -4-
J-S27021-18


           counseled, amended PCRA filing commenced and
           concluded on August 8, 2017. . . .

                 At the beginning of this proceeding . . .
           [Appellant] opted to appear and participate at this
           hearing (August 8, 2017) via telephone, an election
           consistent with his stated and preferred such
           practices. . . . N.T. 8/8/17, p. 5-6. . . .

                 Per an order dated August 9, 2017, this court
           denied [Appellant’s] Amended, Counseled Petition for
           Post Conviction Relief. . . . [Appellant] did not lodge
           an appeal from this court’s denial of his amended,
           counseled PCRA petition.

           The court on February 10, 2017, entered a hearing notice
     for February 24, 2017, relevant to, inter alia, [Appellant’s] Motion
     to Vacate August 10, 2011 Restitution Order . . . .

          [Appellant] on February 22, 2017, filed a Supplemental Brief
     in Support of Motion to Vacate August 10, 2011 Restitution
     Order. . . .

          As past listed, a hearing regarding, inter alia, [Appellant’s]
     motion to vacate the restitution order commenced and concluded
     on February 24, 2017, before this court. N.T. 2/24/17.

          By an order dated February 27, 2017, the court denied
     [Appellant’s] Motion to Vacate August 10, 2011 Restitution
     Order. . . .

           On March 22, 2017, [Appellant] filed a Motion to Vacate,
     Rescind . . . [t]his [c]ourt’s February 27, 2017 Order Denying
     [Appellant’s] Motion to Vacate August 10, 2011 Restitution
     Order . . . .

          In an effort to timely resolve this then most recent lodging
     (March 22, 2017) and recognizing the same was a defense filing,
     as well as the logistical challenges of scheduling at bar electronic
     proceedings,15 the court set this reconsideration motion to also be
     addressed at a hearing already in place for March 30, 2017. . . .

           15[Appellant] throughout the collateral litigation and
           restitution payment challenge before this court was

                                    -5-
J-S27021-18


              incarcerated at FCI Schuylkill resulting from his June
              20, 2011, sentence past imposed by . . . United States
              v. Rauso, No. DPAE 2: 10 CR 000406-001. . . .

              As the order denying the challenge to his restitution
       payment obligation [Appellant] sought to have revisited was
       entered on February 27, 2017, this court only retained its
       jurisdiction requisite to reconsider this motion pursuant to 42
       Pa.C.S. §5505 (Modification of Orders) through March 29, 2017.
       This court to preserve the jurisdictional authority necessary to that
       which it believed stemming from the then listed reconsideration
       hearing to be a next proper course of action was thus constrained
       to vacate the original order of denial (February 27, 2017), address
       any such concerns at the upcoming hearing (March 30, 2017), and
       again review its February 27, 2017, order in light of the same
       following of this scheduling’s (March 30, 2017) conclusion. . . .

              A hearing regarding, inter alia, the Motion to Vacate,
       Rescind . . . [t]his [c]ourt’s February 27, 2017 Order Denying
       [Appellant’s] Motion to Vacate August 10, 2011 Restitution Order
       . . . began and ended on March 30, 2017, before this court. N.T.
       3/30/17.

             Resulting from the March 30, 2017, listing, the court
       through an order of April 24, 2017, reinstated its February 27,
       2017, order denying [Appellant’s] Motion to Vacate August 10,
       2011 Restitution Order . . . . N.T. 2/24/17; and N.T. 3/30/17.[4]

             The then self-represented [Appellant] lodged on May 4,
       2017, a notice of appeal16 from this court denying the motion to
       vacate his restitution sentencing payment obligation, as well as
       his vacating of restitution reconsideration’s subsequent denial.17

              16 [Appellant] on May 4, 2017, contemporaneously
              lodged a second appeal notice stemming from this
              court denying his application for the amendment of
____________________________________________


4  To recap, following the February 24, 2017 hearing, the trial court denied
Appellant’s motion for return of restitution on February 27, 2017. On
March 24, 2017, the trial court vacated the February 27, 2017 order and held
another hearing on March 30, 2017. On April 24, 2017, the trial court
reinstated the February 27, 2017 order, and Appellant filed the instant notice
of appeal to this Court.

                                           -6-
J-S27021-18


            the certificate of imposition of judgment of sentence
            and    his     sentencing    certificate  amendment
            reconsideration’s refusal. See Notice of Appeal dated
            May 4, 2017, and Superior Court No. 1460 EDA
            2017 . . . . (This appeal . . . was withdrawn by
            [Appellant] through his lodging of such a Praecipe for
            Discontinuance on August 25, 2017. . . .

                   By an order of June 9, 2017, the Superior Court
            recognized that [Appellant] had past filed (2) notices
            of appeal, but for whatever the reasons its
            prothonotary’s office was only in receipt of one (1)
            appeal notice. See Superior Court No. 1460 EDA
            2017, Order dated June 9, 2017. The appellate court
            via its order (June 9, 2017) thus directed the trial
            court to forward “... any other notice of appeal in its
            possession filed by Appellant.” See Superior Court
            No. 1460 EDA 2017, Order dated June 9, 2017. This
            court per an order of June 13, 2017, instructed “...
            that the Delaware County Office of Judicial Support
            SHALL IMMEDIATELY send to the Pennsylvania
            Superior Court’s Prothonotary [Appellant’s] Notice of
            Appeal dated May 4, 2017, relevant to this court
            denying [Appellant’s] motion to vacate his restitution
            sentencing payment obligation, as well as his vacating
            of restitution reconsideration’s denial. . . .

            17 Although the relevant Pennsylvania rule of appellate
            procedure provides a trial court may instruct a
            defendant to lodge a statement of error assignments,
            it is not required to take such action. See Pa.R.A.P.
            1925(b) . . . .

                   Requiring on the salient record no such
            additional clarification, . . . this court has elected not
            to direct [Appellant] to lodge an appellate complaints
            statement. . . .

Trial Court Opinion, 12/29/17, at 1–5 (some footnotes and internal citations

omitted).




                                      -7-
J-S27021-18


      On June 28, 2017, Appellant, pro se, filed an application to consolidate

his two appeals, the instant appeal and the appeal at Superior Court Docket

Number 1460 EDA 2017. We denied the request to consolidate on August 1,

2017. Present counsel, appointed by the common pleas court on June 15,

2017, entered his appearance in this Court on August 11, 2017. On August

25, 2017, counsel filed a praecipe to withdraw the appeal docketed at 1460

EDA 2017, and we discontinued the appeal that day.

      As noted supra, on March 6, 2018, Appellant’s counsel filed an

application to withdraw and an Anders brief.        On April 2, 2018, pro se

Appellant filed a “Letter of Intent to Oppose Anders,” which our Prothonotary

filed as Appellant’s “Answer to Application to Withdraw as Counsel.” Thus,

when this Court received Appellant’s request for an extension of time to file

his response to counsel’s request to withdraw, or “Answer,” we denied the

request as moot by order dated May 18, 2018.          Appellant filed a second

application for relief requesting an extension to file his response to counsel’s

petition to withdraw, explaining that his April 2, 2018 filing was merely an

intent to file a response, not the actual response.    On June 22, 2018, we

granted Appellant a thirty-day extension of time to file his response, which he

filed on July 26, 2018. On August 8, 2018, counsel filed a second motion to




                                     -8-
J-S27021-18


withdraw as counsel.5        On September 7, 2018, the Commonwealth filed a

responsive brief to Appellant’s “Response in Opposition to Appellate Counsel’s

Anders Brief and Motion to Withdraw as Counsel,” as ordered by this Court on

June 22, 2018. The matter is now ripe for review.

       The underlying facts of the crimes, as set forth in the affidavit of

probable cause, are as follows:6

            On Friday, September 4th, 2009, I received a complaint from
       Brandi Murray who resides at 113 Harrison Avenue, Norwood, Pa.
       19074. Murray states she rents a house known as 113 Harrison
       Avenue, in Norwood, stating she entered into a residential lease
       agreement with [Appellant] of D and B Property Investors
       Corporation in June of 2009. The lease became effective June 1st,
       2009 and was to continue [until] May 30th and then become month
       to month from there.

            The lease states that Lessee agrees to pay a sum of one-
       thousand three hundred one dollar[s] and three cents per month
       by depositing the funds into TD Bank, Account #368366662 in
       Cash or Money order only. Murray states that [Appellant] was
       given first, last and a security deposit totaling $3,900.00 and
       subsequently has given $2,600.00 to [Appellant] in rent.

             Murray came to police headquarters today because she
       received a notice to vacate the property, by the Sheriff’s
       Department. Murray stated that the Veterans’ Administration
       actually owns the house after the prior owners Alexandrowicz
       defaulted on their mortgage. Murray stated that [Appellant] in an
       e-mail stated “whenever you get anything legal coming in, all u
       have to do is fax it to me. The Sheriff may be there to serve
____________________________________________


5 In light of our decision herein to grant counsel’s application to withdraw as
counsel filed on April 18, 2018, the second application to withdraw filed on
August 8, 2018, is denied as moot.

6 Appellant stipulated at the guilty plea hearing that the affidavit of probable
cause established an adequate factual basis for the guilty plea. N.T. (Guilty
Plea), 8/10/11, at 12.

                                           -9-
J-S27021-18


     papers. I will explain the whole process to you when I get back
     from vacation.”

           I then called the Veterans’ Administration Housing Division
     who told me that Bank of America deals with all of their
     foreclosures. I then contacted Bank of America Fraud Division and
     was told that the house was owned by the Veteran’s
     Administration and that at no time was [Appellant] or D and B
     property Investors Corporation given permission to rent out the
     property located at 113 Harrison Avenue in Norwood, Pa. 19074.
     Bank of America representatives did tell me that the prior owner
     was given an opportunity to hand over the keys in December of
     2008 for a sum of two-thousand dollars but the owner Donna
     Alexandrowicz declined. Bank of America stated that it was
     standard practice to offer homeowners money to vacate a
     foreclosed property so that the Sheriffs Department doesn’t have
     to get involved.

           I was then able to find the prior owner[]s of 113 Harrison
     Avenue, and spoke with Donna Alexandrowicz. Alexandrowicz did
     tell me that in April of 2009, she was offered $700 by [Appellant]
     of D and B Property Investors Corporation to sell him the keys to
     113 Harrison Avenue, Norwood. Alexandrowicz stated to me that
     she accepted the offer because she was walking away from the
     house and wanted nothing more to do with it. Alexandrowicz
     stated she believed it was an accepted practice due to the initial
     offer she received in December of 2008.           At no time did
     Alexandrowicz authorize [Appellant] or D and B Property Investors
     Corporation to use her name in a Residential Lease agreement
     which was signed by [Appellant], President of D and B Property
     Investors Corporation.

           It is this officer’s opinion that [Appellant] did enter into a
     Residential Lease Agreement on a property in which he held no
     legal entitlement. [Appellant] also authored and signed a rental
     agreement which held a prior owner’s name [of] which the owner
     had no knowledge. [Appellant] did have deposited into his TD
     Bank Account #368366662 a total of six-thousand five hundred
     two dollars and six cents, which he had no authority to collect.

Affidavit of Probable Cause, 9/23/09, at unnumbered 1–2.




                                    - 10 -
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      In the Anders brief, counsel describes the issues “that arguably support

the appeal,” as follows:

             The issues that support the within appeal, culled from the
      various pleadings, supporting briefs and hearings, can be divided
      into three categories: the first category are questions pertaining
      to the specific terms of the plea agreement. Appellant contends
      that the record does not support the conclusion that Appellant
      agreed to pay restitution to [K]arla Murray as a specific term of
      the plea agreement. He also contends that the Assistant District
      Attorney failed to state the terms of the agreement, that he failed
      to state that Appellant agreed to pay restitution to [K]arla Murray,
      neither Appellant nor his counsel ever stated an agreement to pay
      restitution; Appellant also posits that the trial court never
      established the terms of the plea agreement, never asked
      Appellant if he agreed to the terms of the plea agreement and
      never asked Appellant if he agreed to pay restitution to [K]arla
      Murray as part of the plea agreement. Appellant faults the trial
      court’s finding that he agreed to pay restitution to [K]arla Murray
      as lacking support in the record. Appellant alleges a violation of
      Pa.R.Crim.P. . . . 590. The second category are questions
      pertaining to [K]arla Murray’s status in [the] matter. Appellant
      contends that [K]arla Murray did not suffer loss of earnings and
      cannot be considered a victim, as that term is defined by 18
      Pa.C.S.A. Section 1106. He also alleges that the trial court is
      powerless to order restitution to [K]arla Murray because she was
      not named as a victim in the Information and no adequate motion
      to amend to include her as a victim was made by the
      Commonwealth or granted by the court. He also contends that
      [K]arla Murray and Brandi Murray were complicit in the crimes he
      committed because they were on constructive notice that
      Appellant did not have title to the property he purported to lease
      to them. As “unindicted co-conspirators,” [K]arla Murray and
      Brandi Murray cannot be victims of Appellant’s crimes. Appellant
      also claims that even if he did agree to pay restitution to [K]arla
      Murray, the Commonwealth was nonetheless required to present
      evidence at the plea hearing that would show she is a victim.
      None having been offered, the court cannot order restitution to
      her. (3) The third category are Appellant’s contentions that the
      sentence imposed by the court cannot run concurrently with his
      Federal sentence because of the “primary jurisdiction rule.”
      Appellant contends that concurrent sentences were indeed part of
      the negotiated plea and because the sentences cannot run

                                     - 11 -
J-S27021-18


        concurrent, he has not gotten his benefit of the bargain and is
        therefore entitled to have restitution monies returned to him.

Appellant’s Brief at 21–23.7

        We may not review the merits of any underlying issues without first

examining counsel’s petition to withdraw as counsel.           Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Moreover, there

are procedural and briefing requirements imposed upon an attorney who

seeks to withdraw on appeal.           The procedural mandates are that counsel

must:

        1) petition the court for leave to withdraw stating that, after
        making a conscientious examination of the record, counsel has
        determined that the appeal would be frivolous; 2) furnish a copy
        of the brief to [his client]; and 3) advise [his client] that he or she
        has the right to retain private counsel or raise additional
        arguments that the [client] deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted).

        In addition, our Supreme Court, in Santiago, stated that an Anders

brief must:



____________________________________________


7  The statement of the issues in the Anders brief does not comply with
Pa.R.A.P. 2116(a). See Commonwealth v. Sanford, 445 A.2d 149, 150
(Pa. Super. 1982) (“When issues are not properly raised and developed in
briefs, and when the briefs are wholly inadequate to present specific issues
for review, a court will not consider the merits thereof.”) (citations omitted).
While the statement of the issues fails to comport with our appellate rules, “in
the interest of justice we address the arguments that can reasonably be
discerned . . . .” Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super.
2003).

                                          - 12 -
J-S27021-18


       (1) provide a summary of the procedural history and facts, with
       citations to the record;

       (2) refer to anything in the record that counsel believes arguably
       supports the appeal;

       (3) set forth counsel’s conclusion that the appeal is frivolous; and

       (4) state counsel’s reasons for concluding that the appeal is
       frivolous. Counsel should articulate the relevant facts of record,
       controlling case law, and/or statutes on point that have led to the
       conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

       Appellant’s counsel has complied with the first prong of Santiago by

providing a summary of the procedural history in the Anders brief. He has

satisfied the second prong by referring to any evidence in the record that he

believes arguably supports the appeal. Counsel also set forth his conclusion

that the appeal is frivolous, and he stated his reasons for that conclusion, with

appropriate support. Moreover, counsel filed a separate motion to withdraw

as counsel, wherein he stated that he examined the record and concluded that

the appeal is wholly frivolous. Further, counsel has attempted to identify and

develop any issues in support of Appellant’s appeal. Additionally, counsel sent

a letter to Appellant, and he attached a copy of the letter to his Anders Brief.8

In the letter counsel stated that he informed Appellant that he has filed an


____________________________________________


8 While counsel has not included an averment that the trial court did not order
the filing of a Pa.R.A.P. 1925(b) statement, as required by Pa.R.A.P. 2111(d),
we will not quash the Anders brief for this reason. The trial court opinion
makes clear that the trial court did not order the filing of a Rule 1925(b)
statement. Trial Court Opinion, 12/29/17, at 5 n.17.

                                          - 13 -
J-S27021-18


Anders brief, and he apprised Appellant of his rights in light of the motion to

withdraw as counsel. Appellant has filed a response to counsel’s request to

withdraw.

      Based on the foregoing, we conclude that the procedural and briefing

requirements of Anders and Santiago for withdrawal have been met.

Therefore, we now have the responsibility to make an independent judgment

regarding whether the appeal is, in fact, wholly frivolous. Commonwealth

v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016). First, however, we must

address the basis for our jurisdiction to consider the merits of Appellant’s

claims. Commonwealth v. Gentry, 101 A.3d 813, 816 (Pa. Super. 2014).

We may raise issues concerning jurisdiction sua sponte. Commonwealth v.

Andre, 17 A.3d 951, 957–958 (Pa. Super. 2011).

      The instant appeal is from the trial court’s order refusing to vacate the

order of restitution. In Gentry, we explained as follows:

      [T]his Court has held that the restitution statute, Section 1106 of
      the Crimes Code, “permit[s] 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, 772 (Pa.
      Super. 2012), citing Commonwealth v. Mitsdarfer, 837 A.2d
      1203, 1205 (Pa. Super. 2003).             Our case law in this
      Commonwealth establishes that the statute creates an
      independent cause of action for a defendant to seek a modification
      of an existing restitution order. Id.; see also 18 Pa.C.S.A. §
      1106(c)(3) (stating, “[T]he court may, at any time or upon the
      recommendation of the district attorney . . . alter or amend any
      order of restitution made pursuant to paragraph (2), provided,
      however, that the court states its reasons and conclusions as a
      matter of record for any change or amendment to any previous
      order[.]”) (emphases added). . . .


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Gentry, 101 A.3d at 816 (emphases in original). We have interpreted this

provision to permit a defendant to seek modification of a restitution order at

any time from the trial court pursuant to 18 Pa.C.S. § 1106, and not through

PCRA. See Commonwealth v. Mitsdarfer, 837 A.2d 1203 (Pa. Super. 2003)

(holding that proper remedy when defendant requests a reduction in the

amount of restitution is through trial court pursuant to 18 Pa.C.S. § 1106, and

not through PCRA); Stradley, 50 A.3d at 772 (same).          Thus, there is no

impediment to our review on the merits.

       We note our well-settled standard of review. In the context of criminal

proceedings, an order of “restitution is not simply an award of damages, but,

rather, a sentence.” Commonwealth v. Atanasio, 997 A.2d 1181, 1182–

1183 (Pa. Super. 2010) (citing Commonwealth v. C.L., 963 A.2d 489, 494

(Pa. Super. 2008)). An appeal from an order of restitution based upon a claim

that a restitution order is unsupported by the record “challenges the legality,

rather than the discretionary aspects, of sentencing.” Stradley, 50 A.3d 771–

772.

       “A challenge to the legality of a sentence . . . may be entertained
       as long as the reviewing court has jurisdiction.” Commonwealth
       v. Borovichka, 18 A.3d 1242, 1254 (Pa. Super. 2011) (citation
       omitted).     It is also well-established that “if no statutory
       authorization exists for a particular sentence, that sentence is
       illegal and subject to correction.” Commonwealth v. Rivera, 95
       A.3d 913, 915 (Pa. Super. 2014) (citation omitted). “An illegal
       sentence must be vacated.” Id. “Issues relating to the legality
       of a sentence are questions of law; as a result, our standard of
       review over such questions is de novo and our scope of review is
       plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.
       Super. 2014) (citations omitted).

                                     - 15 -
J-S27021-18


Gentry, 101 A.3d at 816–817.

      Examining the issues we can identify in the Anders brief, we agree with

counsel that the appeal is frivolous. Appellant attempts to challenge the legal

validity of his counseled, negotiated guilty plea, whether he received the

benefit of his bargain, and whether the record supports the court’s restitution

order. We cite with approval the following passage in the Anders brief, which

explains the frivolous nature of Appellant’s allegations in his Motion to Vacate

August 10, 2011 Restitution Order:

      The Assistant District Attorney stated the crimes Appellant would
      plead to, the grading of the offenses and the recommended
      sentence. He then stated that “There is restitution owed to Karla
      Murray . . . in the amount of $6,500.00.” He advised the court
      “. . . that restitution was pre-paid by [Appellant] during the course
      of this proceeding, as been—being held in escrow by Court
      Financial Services”. Counsel alluded to “. . . a stipulation that’s
      signed here by [Appellant’s plea counsel] and myself, and I would
      ask the [c]ourt to enter the stipulation as an [o]rder of the [c]ourt,
      releasing the $6,500.00 funds to Ms. Murray, who’s present in the
      courtroom here. . . .” Appellant claims, on the other hand, that
      the Assistant District Attorney never said that restitution was part
      of the agreement, and that a motion was never made or granted
      to amend the Informations to name Karla Murray as a victim. The
      transcript shows, however, that counsel did in fact make such a
      motion and alluded to a stipulation for payment of restitution to
      Karla Murray. While Appellant may establish a technical violation
      of Rule 590, he is nonetheless not entitled to relief. In order to
      obtain relief from a violation of the Rules of Criminal Procedure,
      Appellant must show prejudice. . . .

Anders Brief, 9/17/18, at 27 (citing Commonwealth v. Bowman, 840 A.2d

311 (Pa. Super. 2003).      Moreover, in affirming this case, we rely on the

thorough, detailed, and insightful opinion filed on December 29, 2017, by the




                                     - 16 -
J-S27021-18


Honorable Kevin F. Kelly, who has presided over this case since its inception

in 2011.9

       We also have considered Appellant’s “Response in Opposition to

Appellate Counsel’s Anders Brief and Motion to Withdraw as Counsel . . .,”

(“Response”) filed on July 26, 2018.           In his Response, Appellant asks this

Court to disqualify counsel and suggests that counsel’s appointment applied

only to representation during the PCRA proceedings. Response, 7/26/18, at

1–2, 6, 11, and Exhibit D.           Appellant also avers that counsel rendered

ineffective assistance in failing to file a praecipe in the common pleas court

pursuant to Pa.R.A.P. 301(d) and a notice of appeal from the judgment of

sentence because counsel did not send Appellant copies of case law. Id. at

3–5, 9, 12.

       In his August 8, 2018 Second Application to Withdraw as Counsel,

counsel explains as follows:

             That Appellant has at times demanded that the
       undersigned . . . file with the lower court a praecipe to enter the
       August 10, 2011 sentencing order into the lower court docket,
       followed by a Notice of Appeal of that now-entered order to this
       Court. Appellant is of a mind that such filings will finalize the
       judgment of sentence so that it is now ripe for direct appeal. To
       the contrary, as no post sentence motions were filed, Appellant
       had 30 days after sentence was imposed in open court, to take a
       direct appeal to this Court, Commonwealth vs. Millsock, 873 A2d
       748 (Pa. Super. 2008); Commonwealth vs. Gaines, 127 A3d 15
       (Pa. Super. 2015); see also, Pa.R.A.P. Rules 108(d)(2),301(a)(1),
       (2) and 903. By way of letter dated and sent to Appellant on
____________________________________________


9 The parties are directed to attach a copy of the opinion in the event of future
proceedings.

                                          - 17 -
J-S27021-18


     January 29, 2018, the undersigned advised Appellant that such
     filings would not revive a direct appeal of his sentence, citing the
     above authorities. Appellant does not accept that this Court does
     not now have jurisdiction to entertain a new direct appeal of a
     sentence announced and imposed on August 10, 2011. To that
     end, Appellant has insisted that the undersigned file the above
     mentioned praecipe and notice of appeal, under threat of referral
     to the Pennsylvania Supreme Court Disciplinary Board as well as
     a federal civil rights action for monetary damages. Appellant has
     made these threats by way of electronic mail and has made them
     public by including them in his filings with this Court, see, Answer,
     “Exhibit B[.]”

Second Application to Withdraw as Counsel, 8/8/18, at 4–5.

     It is well settled that an indigent defendant does not have “a

constitutional right to compel appointed counsel to press nonfrivolous points

requested by the client, if counsel, as a matter of professional judgment,

decides not to present those points.” Commonwealth v. Morrison, 173 A.3d

286, 292 (Pa. Super. 2017) (citing Jones v. Barnes, 463 U.S. 745, 751,

(1983)). Further, regarding Appellant’s contention that the amendment of the

information to include Karla Murray as an additional person from whom

Appellant had unlawfully obtained United States currency, the claim has no

merit. Pa.R.Crim.P. 564 (“The court may allow an information to be amended

when there is a defect in form, the description of the offense(s), the

description of any person or any property, or the date charged, provided the




                                    - 18 -
J-S27021-18


information as amended does not charge an additional or different

offense.”).10

       Appellant also filed an application for relief on October 1, 2018, in which

he asks this Court to “issue an order upon the Director of the Office of Judicial

Support . . . to transmit the documents [Appellant] filed with said Director . . .

to the Prothonotary of this Court . . . so this [C]ourt will have appellate

jurisdiction to review . . . the decisions the trial court rendered in its

August 10, 2011 order . . .”           Application for Relief, 10/1/18, at 1.   We

concluded supra that we have jurisdiction in this matter. Thus, we deny the

Application as moot.

       For all of these reasons, we grant counsel’s petition to withdraw as

counsel. Furthermore, we affirm the trial court’s April 24, 2017 order denying

Appellant’s Motion to Vacate August 10, 2011 Restitution Order.




____________________________________________


10 Pa.R.Crim.P. 564 stated as above in 2011, the time of Appellant’s guilty
plea and sentencing. The rule was amended on December 21, 2016, effective
December 21, 2017, to read:

       The court may allow an information to be amended, provided that
       the information as amended does not charge offenses arising from
       a different set of events and that the amended charges are not so
       materially different from the original charge that the defendant
       would be unfairly prejudiced. Upon amendment, the court may
       grant such postponement of trial or other relief as is necessary in
       the interests of justice.

                                          - 19 -
J-S27021-18


        March 6, 2018 petition to withdraw as counsel granted. April 24, 2017

order affirmed. August 8, 2018 petition to withdraw as counsel denied as

moot. October 1, 2018 application for relief denied as moot.

        Judge Lazarus did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/18




                                      - 20 -
                                                                                   Circulated 10/15/2018 03:19 PM




IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                          CRIMINAL


COMMONWEALTH OF PENNSYLVANIA                       :      NO. 1821-10

                       v.


GENNARO RAUSO                                             Superior Court No. 1792 EDA 2017


A. Sheldon Kovach, Esquire    - Deputy District Attorney for the Commonwealth
William P. Wismer, Esquire    - Attorney for Gennaro Rauso
                                           OPINION


Kelly, J.                                                         Date: December 29, 2017

                                        I. Case History


       A criminal complaint was filed on September 23, 2009, by Corporal Christopher

Kennedy, Norwood Police Department, charging Gennaro Rauso (hereinafter referred to as

"Rauso" and/or "Defendant") with, inter alia, theft by deception' and deceptive business

practices.2 On this same date (September 23, 2009), the magisterial district judge issued for the

Defendant a bench warrant. See Bench Warrant, No. CR 253-09          -   Magisterial District Court

32-2-42 dated September 23, 2009.

        A preliminary hearing was held on March 10, 2010, before the magisterial district court

and after the Commonwealth's presentation of evidence, the magisterial district judge held

Defendant Rauso for trial court proceedings as to, inter alia, theft by deceptions and deceptive

business practices.4

        The Defendant on April 8, 2010, was formally arraigned at which time the Office of the

District Attorney of Delaware County lodged against him criminal informations averring, inter
alio, Information B   - Theft by Deceptions   and Information E   - Deceptive Business Practices.6
See Informations.

       On August 10, 2011,7 Defendant Rauso entered a counseled, negotiated guilty plea to

Information B   - Theft   by Deception,8 a felony of the third degree, and Information E         -
Deceptive Business Practices,9 also a third degree felony.        N.T. 8/10/11, pp. 11-13.    The

prosecution consistent with the plea agreement's terms orally motioned, of-record, to amend its

past filed criminal informations to recognize Carla Murray as an additional victimized owner of

property, who incurred a financial loss, and that Information E (deceptive business practices)1°

also be amended to reflect an amount at issue over two -thousand ($2,000.00) dollars, as well as a

resultant third degree felony gradation. These Commonwealth amendment applications were

allowed, absent defense objection. N.T. 8/10/11, pp. 5-7. See also Defendant's Guilty Plea

Statement, and Informations B and E. See generally Pa.R.Crim.P. 564.

       Immediately subsequent to his entering this plea of guilty and his attorney waiving such

an investigation, Defendant Rauso was sentenced wholly consistent with the lawyers' plea

negotiations as follows: Information B (Theft by Deception)" -A term of eighteen (18) through

thirty-six (36) months incarceration at a state correctional facility; and Information E (Deceptive

Business Practices)12 -A fifteen (15) through thirty-six (36) month period of imprisonment at a

state correctional institution. Defendant Rauso by that which both counsel acknowledged was

not entitled to any time served credit and was deemed for recidivism risk reduction incentive

considerationu ineligible, without defense opposition. N.T, 8/10/11, pp. 8, 22. Additionally, per

the plea understanding, these sentences were directed to run consecutively to each other

(Informations B and E), but the entirety of the Defendant's sentence at bar was ordered to be

 served concurrently with his June 20, 2011, sentence past imposed by the District Court of the



                                                  2
Eastern District of Pennsylvania under docket, United States     v.   Rauso, No. DPAE 2: 10 CR

000406-001, an aggregate period of incarceration of one hundred sixty (160) months followed
                                                                                            by

three (3) years supervised release, See Certificate of Imposition of Judgment of Sentence. N.T.

8/10/11, pp. 20-22. See also United States   v.   Rauso, No. DPAE 2: 10 CR 000406-001        - United
States District Court-Eastern District of Pennsylvania.

       No timely or post -sentence motions otherwise were lodged, including any pleading

advancing a challenge to the sentence's legality and/or a request to withdraw Defendant Rauso's

previously entered negotiated guilty plea.          No direct appeal to the Superior Court of

Pennsylvania was filed.

       In the course of his ongoing collateral litigation before this court,14 the Defendant on June

9, 2016, lodged a Motion to Vacate August 10, 2011 Restitution Order ...      ,   as well as a Brief in

Support of Motion to Vacate August 10, 2011 Restitution Order ...         .   See Motion to Vacate

August 10, 2011 Restitution Order ... dated June 9, 2016. See also Brief in Support of Motion
                                                                                              to


Vacate August 10, 2011 Restitution Order ... dated June 9, 2016.

        The court on February 10, 2017, entered a hearing notice for February 24, 2017, relevant

 to, inter alia, the Defendant's Motion to Vacate August 10, 2011 Restitution Order                See

 Hearing Notice dated February 10, 2017. See also Motion to Vacate August 10, 2011 Restitution

 Order ... dated June 9, 2016.

        Defendant Rauso on February 22, 2017, filed a Supplemental Brief in Support of Motion
                                                                                            of
 to Vacate August 10, 2011 Restitution Order. See Defendant's Supplemental Brief in Support

 Motion to Vacate August 10, 2011 Restitution Order ... dated February 22, 2017.




                                                    3
       As past listed, a hearing regarding, inter alia, the Defendant's motion to vacate the

restitution order commenced and concluded on February 24, 2017, before this court.          N.T.

2/24/17.

       By an order dated February 27, 2017, the court denied the Defendant's Motion to Vacate

August 10, 2011 Restitution Order ...   .   See Order dated February 27, 2017. See also Motion to

Vacate August 10, 2011 Restitution Order ... dated June 9, 2016.

       On March 22, 2017, Defendant Rauso filed a Motion to Vacate, Rescind ... This Court's

February 27, 2017 Order Denying Defendant's Motion to Vacate August 10, 2011 Restitution

Order ... [sic].    See Motion to Vacate, Rescind ... This Court's February 27, 2017 Order

Denying Defendant's Motion to Vacate August 10, 2011 Restitution Order ... [sic] dated March

22, 2017.

       In an effort to timely resolve this then most recent lodging (March 22, 2017) and

recognizing the same was a defense filing, as well as the logistical challenges of scheduling at

bar electronic proceedings,15 the court set this reconsideration motion to also be addressed at a

hearing already in place for March 30, 2017. See Motion to Vacate, Rescind           This Court's

February 27, 2017 Order Denying Defendant's Motion to Vacate August 10, 2011 Restitution

Order ... [sic] dated March 22, 2017. See also Hearing Notice dated March 24, 2017.

           As the order denying the challenge to his restitution payment obligation the Defendant

sought to have revisited was entered on February 27, 2017, this court only retained its

jurisdiction requisite to reconsider this motion pursuant to 42 Pa.C.S. §5505 (Modification of
                                                                                               to
 Orders) through March 29, 2017. This court to preserve the jurisdictional authority necessary

 that which it believed stemming from the then listed reconsideration hearing to be a next proper

 course of action was thus constrained to vacate the original order of denial (February 27, 2017),



                                                    4
address any such concerns at the upcoming hearing (March 30, 2017), and again
                                                                              review its

February 27, 2017, order in light of the same following of this scheduling's (March 30,
                                                                                        2017)

conclusion. See Order dated March 24, 2017. See also Motion to Vacate, Rescind
                                                                               ... This

                                                                                2011
Court's February 27, 2017 Order Denying Defendant's Motion to Vacate August 10,

Restitution Order ... [sic] dated March 22, 2017.

       A hearing regarding, inter alia, the Motion to Vacate, Rescind ... This Court's February

27, 2017 Order Denying Defendant's Motion to Vacate August 10, 2011 Restitution
                                                                                Order ...

[sic] as then set began and ended on March 30, 2017, before this court. N.T. 3/30/17.

       Resulting from the March 30, 2017, listing, the court through an order of April 24, 2017,

reinstated its February 27, 2017, order denying the Defendant's Motion to Vacate August
                                                                                        10,


2011 Restitution Order ...   .   See Orders dated February 27, 2017, and April 24, 2017. See also

Motion to Vacate, Rescind           This Court's February 27, 2017 Order Denying Defendant's

                                                                                          to
Motion to Vacate August 10, 2011 Restitution Order ... [sic] dated March 22, 2017; Motion
                                                                                      Support
Vacate August 10, 2011 Restitution Order ... dated June 9, 2016, Defendant's Brief in

 of Motion to Vacate August 10, 2011 Restitution Order ... dated June 9, 2016; Defendant's
                                                                                     ... dated
 Supplemental Brief in Support of Motion to Vacate August 10, 2011 Restitution Order

 February 22, 2017; N.T. 2/24/17; and N.T. 3/30/17.
                                                                                             from
        The then self -represented Defendant lodged on May 4, 2017, a notice of appeal
                                                                                        as well as
 this court denying the motion to vacate his restitution sentencing payment obligation,
                                                                                  Appeal dated
 his vacating of restitution reconsideration's subsequent denia1.17 See Notice of
                                                                                   27,
 May 4, 2017, and Superior Court No. 1792 EDA 2017. See also Orders dated February
                                                                                        Order
 2017, and April 24, 2017; Motion to Vacate, Rescind ... This Court's February 27, 2017
                                                                                  dated March
 Denying Defendant's Motion to Vacate August 10, 2011 Restitution Order ... [sic]



                                                    5
22, 2017; Motion to Vacate August 10, 2011 Restitution Order ... dated June 9, 2016,

Defendant's Brief in Support of Motion to Vacate August 10, 2011 Restitution Order ... dated

June 9, 2016; and Defendant's Supplemental Brief in Support of Motion to Vacate August 10,

2011 Restitution Order ... dated February 22, 2017.

                                          H. Discussion

       Through Defendant Rauso's numerous pleadings seeking that his restitution payment

obligation be vacated and the reconsideration lodging of the court denying the same, he

maintained that both his restitution sentencing condition stemming from such an expressly

agreed on term of his negotiated guilty plea should be set aside, as well that he is entitled to the

return of the restitution amount he past and fully paid, prior to pleading guilty. In support of this

challenge, inter alia, the Defendant advanced various claims, including a contention he was

unaware and/or did not agree as part of the plea bargain to a restitution payment obligation, as

well as that although this restitution sentencing responsibility resulted from a counseled

negotiated plea of guilty, the failure of the 'prosecution to present evidence and/or witness

testimony salient to the financial loss the victim suffered rendered this restitution sentencing

condition legally infirm. The Defendant also baldly maintained in the alternative that despite

this court accepting such a term of the plea agreement and the sentencing certificate

unquestionably directing the sentence at bar was to be served concurrently to his then ongoing

federal court sentence,I8 he as a matter of law could not be afforded that benefit of the plea

bargain because the certificate of imposition of judgment of sentence did not further specify

certain language from the Pennsylvania judicial code's section 9761(b), 42 Pa.C.S. §9761(b).

See Orders dated February 27, 2017, and April 24, 2017. See also Defendant's Motion to Vacate

 August 10, 2011 Restitution Order ... dated June 9, 2016; Brief in Support of Motion to Vacate



                                                   6
August 10, 2011 Restitution Order ... dated June 9, 2016, pp. 17-24; Supplemental Brief in

Support of Motion to Vacate August 10, 2011 Restitution Order ... dated February 22, 2017, pp.

6-9; and Motion to Vacate, Rescind ... This Court's February 27, 2017 Order Denying

Defendant's Motion to Vacate August 10, 2011 Restitution Order ... [sic] dated March 22, 2017.

These arguments of Defendant Rauso on the instant record are meritless.

                                   Jurisdiction to Adjudicate

       Salient to current considerations, section 1106 of the Pennsylvania crimes code provides

that below:

                                     - Upon conviction
              (a) General Rule.
              property has been stolen, ... or otherwise
                                                         for any crime wherein
                                                         unlawfully obtained,
              as a direct result of the crime, ... the offender SHALL be
                                                                                .
              sentenced to make restitution in addition to the punishment
              prescribed therefor....

              (c)   Mandatory restitution.   -
                       (1) The court SHALL ORDER FULL RESTITUTION:

                              (i) Regardless of the current financial resources of
                              the defendant, so as to provide the victim with the
                              fullest compensation for the loss. ...

                        (2) At the time of sentencing the court shall specify the
                        amount and method of the restitution. In determining the
                        amount and method of restitution, the court:

                               (i) Shall consider the extent of injury suffered by
                               the victim, the victim's request for restitution as
                               presented to the district attorney ... and such other
                               matters as it deems appropriate....

                        (3)   The court may, at any time or upon the
                        recommendation of the district attorney that is based on
                        information received from the victim and the probation
                        section of the county or other agent designated by the
                        county commissioners of the county with the approval of
                        the president judge to collect restitution, alter or amend
                        any order of restitution ... , provided, however, that the

                                                 7
                         court states its reasons and conclusions as a matter of
                         record for any change or amendment to any previous order.

18 Pa.C.S.    §1106(a)(c)(1)(i)(2)(i)(3). (Emphasis in original and added).

       Although the Defendant's various challenges targeting his sentencing restitution payment

responsibility were launched well after his sentencing judgment became final, this court flowing

from certain of the material statutory language cited above as seen by the appellate courts yet

retained necessary jurisdictional authority to adjudicate his restitution challenge. See Certificate

of Imposition of Judgment of Sentence and Defendant's Motion to Vacate August             10, 2011


Restitution Order ... dated June 9, 2016. Specifically, the Pennsylvania Superior Court has held

that below:

                  This provision [18 Pa.C.S. §1106(c)(3)] has been interpreted by
                  our Court to permit a defendant to seek a modification or
                  amendment of a restitution order at any time directly from the
                  trial court See Commonwealth v. Mitsdarfer, 837 A.2d 1203
                  (Pa. Super. 2003)(holding that proper remedy for defendant
                  requesting a reduction in the amount of restitution, entered
                  following no contest plea to unauthorized use of an automobile,
                  eleven months after judgment of sentence was entered, was
                  through trial court, pursuant to 18 Pa.C.S. § 1106, and not PCRA;
                  since statute afforded trial court authority to amend or alter
                  restitution order at any time, defendant was not time -barred from
                  filing an appropriate motion with the trial court).

Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa.Super. 2012). (Emphasis added). See also
Commonwealth v. Holms, 155 A.3d 69, 77 (Pa.Super. 2017) citing Commonwealth v. Stradley
supra 50 A.3d at 772 (" ... [A] motion requesting modification of restitution is not considered a
typical post -sentence motion subject to timeliness constraints.") and Commonwealth v. Gentry,
 101 A.3d 813, 816 (Pa.Super. 2014) quoting Commonwealth v. Stradley supra 50 A.3d at 772.

        Recognizing the clearly stated directions of the above cited appellate court opinions, this

court enjoyed the requisite jurisdiction relevant to the Defendant's numerous attacks on his past

imposed restitution payment sentencing term. See Orders dated February 27, 2017, and April 24,

2017. See also Defendant's Motion to Vacate August 10, 2011 Restitution Order             dated June
9, 2016; Brief in Support of Motion to Vacate August 10, 2011 Restitution Order ... dated June

9, 2016, pp. 17-24; Supplemental     Brief in Support of Motion to Vacate August        10, 2011


Restitution Order ... dated February 22, 2017, pp. 6-9; and Motion to Vacate, Rescind ... This

Court's February 27, 2017 Order Denying Defendant's Motion to Vacate August 10, 2011

Restitution Order ... [sic] dated March 22, 2017. See also Commonwealth v. Stradley supra 50

A.3d at 772.

                        Validity of Counseled, Negotiated Plea of Guilty

       A core underpinning of the Defendant's varied contentions that his sentencing condition

of restitution was unlawful, as well as his then ongoing collateral litigation, were challenges to

the legal validity of his counseled, negotiated guilty plea. See Motion to Vacate Restitution, pp.

6, 12-13; Brief in Support of Motion to Vacate August 10, 2011 Restitution Order ... dated June

9, 2016, pp. 8-13; and Motion to Vacate, Rescind ... This Court's February 27, 2017 Order

Denying Defendant's Motion to Vacate August 10, 2011 Restitution Order          [sic] dated March

22, 2017, pp. 4-7, 9-10.    See also Motion to Withdraw Guilty Plea and or Modification of

Sentence ... Nunc Pro Tunc [sic] dated March       8,   2017; Motion for Leave to File Motion to

Withdraw Guilty Plea and or for Modification of Sentence Nunc Pro Tunc [sic] dated March 8,

2017; Brief in Support of Motion to Withdraw Guilty Plea and or Modification of Sentence ...

Nunc Pro Tune [sic] dated May 30, 2017; Second Motion for Leave to Amend Petition for Post

Conviction Collateral Relief dated May 30, 2017; Amended, Counseled Petition for Post

Conviction Relief ... dated July 17, 2017; Defendant's Pro Se Motion to Correct the Judgment of

 Conviction ... dated January 21, 2016; Brief in Support of Motion to Correct Judgment ... dated

January 21, 2016; Reply to the Commonwealth's Answer ... dated April 20, 2016; Motion to

Rescind, Modify And Or Reconsider This Court's February 27, 2017 Order Denying
Defendant's Application for the Amendment of the Certificate of Imposition of Judgment of

Sentence [sic] dated March 22, 2017; and Defendant's Pro Se Second, Motion for an Extension

of Time by Which to File a Brief in Support of His Motion to Withdraw Guilty Plea and or for

Modification of Sentence; Alternatively to File Said Motion Nunc Pro Tune [sic] dated April 27,

2017.      Despite Defendant Rauso's assertions otherwise, a review of the record at bar

demonstrates that his counseled, negotiated plea of guilty was certainly in all material respects

lawful.

          In general, a guilty plea is a waiver of treasured rights, and to be valid the plea must be

knowing, intelligent and voluntary. Commonwealth             v.   Sauter, 389 Pa.Super. 484, 487-88, 567

A.2d 707, 708-09 (1989) and Pa.R.Crim.P. 590. "A guilty plea colloquy must include inquiry as

to whether: (1) the defendant understood the nature of the charge to which he is pleading guilty;

(2) there is a factual basis for the plea; (3) the defendant understands that he has the right to a

jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5)

the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware

that the judge is not bound by the terms of any plea agreement unless he accepts such

agreements."      Commonwealth       v.   Flood, 426 Pa.Super. 555, 565, 627 A.2d 1193, 1198 (1993)

quoting Commonwealth         v.   Willis, 471 Pa. 50, 51-52, 369 A.2d 1189, 1189-90 (1977). See also

Commonwealth        v.   Morrison, 878 A.2d 102, 107 (Pa.Super. 2005) citing Commonwealth                v.


Flanagan, 578 Pa. 587, 608-09, 854 A.2d 489, 502 (2004); and Commonwealth                    v.   Reid, 117


A.3d 777, 782-83 (Pa.Super. 2015). Inquiry about these six (6) areas is in every guilty plea

 colloquy mandatory.       Commonwealth        v.   Morrison supra 878 A.2d at 111; Commonwealth         v.


 Moser, 921 A.2d 526, 529 (Pa.Super. 2007); Commonwealth v. Mendoza, 730 A.2d 503, 506

 (Pa.Super. 1999) citing Commonwealth v. Persinger, 532 Pa. 317, 321-22, 615 A.2d 1305, 1307



                                                        10
(1992) and Commonwealth           v.   McClendon, 403 Pa.Super. 467, 469-70, 589 A.2d 706, 707-08

(1991). See also Comment to Pa.R.Crim.P. 590.

       The critical purpose of the guilty plea colloquy is to provide memorialized evidence that

the plea was a voluntary and intelligent action undertaken with a full awareness                              of   its


ramifications. Commonwealth              v.   Iseley, 419 Pa.Super. 364, 377, 615 A.2d 408, 415 (1992)

citing Commonwealth     v.   Ingram, 455 Pa. 198, 200, 316 A.2d 77, 78 (1974); Commonwealth                         v.



Rush, 909 A.2d 805, 808 (Pa.Super. 2006) Commonwealth                            v.   McCauley, 797 A.2d 920, 922

(Pa.Super. 2000; Commonwealth                 v.   Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011) quoting

Commonwealth v. Fluharty, 429 Pa.Super. 213, 219, 632 A.2d 312, 314-15 (1993).

       The guilty plea colloquy must affirmatively demonstrate that the defendant understood

what the plea connoted and its consequences. Commonwealth v. Bedell, 954 A.2d 1209, 1212

(Pa.Super. 2008) citing Commonwealth                v.   Lewis, 708 A.2d 497, 501 (Pa.Super. 1998). See also

Commonwealth     v.   Hart, 2017 WL 5246752, p. 7 (Pa.Super. 2017) quoting Commonwealth                             v.


Yeomans supra 24 A.3d at 1047; Commonwealth                         v.   Willis, 68 A.3d 997, 1002 (Pa.Super. 2013)


quoting Commonwealth         v.    Lewis supra 708 A.2d at 501; and Commonwealth                     v.   Miller, 432

                                                                                         or
Pa.Super. 619, 629, 639 A.2d 815, 820 (1994). The court may direct this plea examination, it

may permit defense counsel or the attorney for the Commonwealth to conduct such an of-record

colloquy. Commonwealth            v.   McCauley supra 797 A.2d at 922.

        While the rule 59019 inquiries are necessary to the lawfulness of any plea of guilty, in
                                                                                          a guilty
 discerning a defendant's actual knowledge of the implications and rights associated with

 plea and its legal validity, a court is free to examine the totality of the material circumstances

 surrounding the plea. Commonwealth                 v.   Fears, 575 Pa. 281, 302, 836 A.2d 52, 64 (2003) citing

                       Allen, 557 Pa. 135, 145, 732 A.2d 582, 588-89 (1999).                                 See also
 Commonwealth     v.




                                                               11
Commonwealth v. Kelly, 136 A.3d 1007, 1013 (Pa.Super. 2016) citing Commonwealth                           v,



Muhammad, 794 A.2d 378, 383-84 (Pa.Super. 2002); Commonwealth               v.   Broaden, 980 A.2d 124,

129 (Pa.Super. 2009) citing Commonwealth         v.   Flanagan supra 578 Pa. at 605-06, 854 A.2d at

500; and Commonwealth      v.   Bedell supra 954 A.2d at 1213 citing Commonwealth v. Fletcher,

604 Pa. 493, 515, 986 A.2d 759, 772 (2009); Commonwealth v. Naiividad, 595 Pa. 188, 207, 938

A.2d 310, 321 (2007). Under this standard, the trial court may properly consider a wide array of

relevant evidence, including but not limited to written plea agreements. Commonwealth             v.   Allen

supra 557 Pa. at 146-47, 732 A.2d at 589. Hence, the needed inquiries do not have to be solely

oral, but may be supplemented by a written colloquy that the defendant reads, completes and

signs, which is also incorporated as part of the case record, in addition to some of-record, verbal

examination.   Commonwealth        v.   McCauley supra 797 A.2d at 922 and Commonwealth                   v.


Morrison supra 878 A.2d at 108.

       When deciding a collateral attack targeting a guilty plea's lawfulness and/or relatedly

plea counsel's alleged professional incompetence regarding the same grounded on a claim a

defendant did not receive "the benefit of the bargain," inter alia, courts " ... focus on whether a

guilty plea was entered premised on an expectation that was legally impossible to fulfill."

Commonwealth     v.   Kersteter, 877 A.2d 466, 470 (Pa.Super. 2005).               " 'Assuming the plea


agreement is legally possible to fulfill, ... and the court accepts and approves the plea, then the

parties and the court must abide by the terms of the agreement.' " Commonwealth             v.   Anderson,

955 A.2d 1184, 1191 (Pa.Super. 2010) quoting Commonwealth v. Parsons, 969 A.2d 1259,

1267-68 (Pa.Super. 2009) citing Commonwealth           v.   Coles, 365 Pa.Super. 562, 571, 530 A.2d 453,

458 (1981) and Commonwealth        v.   Reichle, 441 Pa.Super. 1, 4, 589 A.2d 1140, 1141 (1991).




                                                      12
       Defendant Rauso's written guilty plea statement is four (4) pages in length and consists

of twenty-seven (27) individually numbered paragraphs descriptively and comprehensively

detailing the following: Ability to Understand; Contact with Lawyer; Right to Trial; Trial Rights;

Trial by Jury; Trial by Judge; Motions Before Trial; Effect of Plea; Admission of Guilt ... and
                                                                               Guilty Plea
Penalties; Plea Agreement; Loss of Rights; and Voluntary Plea. See Defendant's

Statement. The Defendant's duly executed guilty plea statement salient to current considerations

provides that below:

               If you choose to plead guilty ... , this Guilty Plea Statement should
               be completed by you. ... You should read this statement carefully
               and review it with your lawyer. It is IMPORTANT that you
               understand, agree with and answer truthfully everything contained
               in this Guilty Plea Statement. If you understand and agree with
               what is said in a paragraph of this statement, place your initials on
               the line provided. Ifyou do not understand and agree with what
               is said in a paragraph, DO NOT place your initials on the line
               provided, and you should tell the judge what you do not agree
               with or understand....

                ...    I   can read, write, speak and understand the English
               Language....
               I do not have any physical,  emotional or mental problems which
               affect my ability to understand what I ant doing today, the rights
               which I have and the rights which I am giving up by pleading
               guilty ... and I am not now under the influence of any narcotics,
               drugs, alcohol or any other substance.

                I have fully discussed this case with my lawyer including the facts
                and possible defenses I may have to these charges such as but not
                limited to: I didn't commit the crimes charged, mistaken identity,
                alibi ... insanity ... , justification ... , and any lawful excuse for
                my acts. I understand and my lawyer has explained to me all of
                the possible defenses I may have to these charges. I am satisfied
                that my lawyer knows of all the facts and law concerning this case.

                I am  fully satisfied with what my lawyer has done for me in the
                past and what my lawyer is doing for me today concerning this
                case. ...



                                                  13
I understand and my lawyer has explained to me that if I plead not
guilty, I have a right to have a trial before a judge and a jury or I
may ask that my trial be before a judge alone without a jury.

I understand and my lawyer has explained to me that     if I plead not
guilty and have a trial:

I  am presumed to be innocent of these crimes and the
Commonwealth has the burden of proving that I committed each of
the elements of the crimes charged beyond a reasonable doubt....

My plea of guilty ... will have the same effect in criminal law as if
I had a trial and was convicted of the crimes to which I have pled
guilty ... .

I understand and agree that I am pleading guilty ... to the crimes
listed below.

I understand and my lawyer has explained to me the elements of
these crimes and the possible penalties for them. By pleading
guilty, I agree and admit that I committed each element of these
crimes ...     I agree that the Commonwealth can prove that I
               .


committed each element of these crimes beyond a reasonable
doubt. I am pleading guilty ... to the following crimes:
A) Theft by Deception a      felony of the 3rd degree ... .

B) Deceptive Business Practice a ... felony of the 3rd degree and
   the maximum penalty for this crime is 7 years in jail and a
   $15,000 fine.

I understand and my lawyer has explained to me that:
I could be sentenced to the maximum penalty for each of these
crimes and the total maximum sentence I could receive is 14
[years] in jail and a $30,000 fine....

    I understand and my lawyer has explained to me that the judge is
    not bound to follow the terms of any plea agreement that I have
    with the Commonwealth ... but if the judge decides not to accept
    the plea agreement, I will be allowed to withdraw or take back my
    pleas of guilty and the judge has not taken part in any plea
    discussions or plea agreements.

    I understand and my lawyer has fully explained to me all of the
    facts and rights which I have that are contained in this guilty plea
    statement and that by pleading guilty ... , I give up or lose all of
    these rights.

                                     14
              I have  not been pressured, forced or threatened in any way by
              anyone to plead guilty ... to these charges, and I have not been
              promised anything by anyone in return for pleading guilty ...
              other than the plea agreement, if any, which has been presented
              to thejudge.

              I have had enough time to fully discuss my case and my decision
              to plead guilty ... and everything contained in this Guilty Plea
              Statement with my lawyer and, by placing my initials on all of the
              lines provided, I am saying that I understand, agree with, and
              answered truthfully everything contained in this Guilty Plea
              Statement

                                        -
See Defendant's Guilty Plea Statement Instructions and Paragraph Nos. 1, 2, 3, 4, 6, 7, 19, 21,
22, 24, 25, 26, 27. (Emphasis added.) N.T. 8/10/11.

       After his being sworn, inter alia, this court colloquied Defendant Rauso as to his

understanding of the negotiated guilty plea and his execution of the guilty plea statement:

               The Court:

                              Mr. Rauso, you have had the opportunity to review
                              fully with Mr. Bros [sic] a Guilty Plea Statement[?]

               Defendant Rauso:

                              Yes, Your Honor.

               The Court:

                              You have signed and initialed that document where
                              required[?]

               Defendant Rauso:

                              Yes.

               The Court:

                              Would you like any more time to further talk
                              privately with Mr. Bros [sic] about any of the
                              rights related to Information [sic[2° that Guilty
                              Plea Statement discusses?



                                                 15
Defendant Rauso:

              No.

The Court:

              Do you have any questions about those rights and
              that information you'd care to ask me?

Defendant Rauso:

              No.

The Court:

              It's your belief then you understand those rights and
              that information.

Defendant Rauso:

              Yes....
The Court:

               ... Mr. Rauso, would you like any more time to
              further talk privately with Mr. Bros [sic] about
              your decision to enter this Guilty Plea?

Defendant Rauso:

              No.

 The Court:

               You're satisfied with Mr. Bros [sic] being your
               attorney in this case?

 Defendant Rauso:

               Yes.

 The Court:

               You would like me then to accept your plea of
               guilty as well as the sentencing recommendation the
               attorney's [sic] have reached?

                                  16
             Defendant Rauso:

                             I'm sorry. I didn't hear that.

              The Court:

                             You would like me to accept  your Guilty Plea,
                             and follow the sentencing recommendations the
                             attorneys have agreed on?

              Defendant Rauso:

                             Yes.

N.T. 8/10/11, pp. 9-10, 12-13. (Emphasis added.)

       Although standing immediately to the left of his lawyer at the bar of the court and

literally within three (3) feet of the assistant district attorney when counsel recounted
                                                                                          and

confirmed the crimes to which he was pleading, the guilty plea being negotiated, and the plea

agreement's terms, including but not limited to his then already paid restitution sentencing

obligation, Defendant Rauso did not in any manner dispute the same, despite the court affording

the Defendant the opportunity to once more consult privately with his attorney about his plea

decision and/or inquiring directly of him whether he had any questions and/or concerns he then
                                                                                                to
needed to bring to the court's attention. N.T. 8/10/11, pp. 3-8, 9-13. Furthermore, in response

the court's direct query whether he wanted it to accept his guilty plea and its recommended

sentence, Defendant Rauso unequivocally replied, "Yes." N.T. 8/10/11, pp. 12-13.

       The Defendant in further memorialization of his pleading guilty to Information B   - Theft
 by Deception21 signed this information (B) acknowledging he " ... unlawfully and intentionally

                                                                                   at
 obtain[ed] or with[held] property of another, to wit: U.S. Currency [sic], valued
                                                                                 Defendant
 $6,502.06 ... ." See Information B. See also N.T. 8/10/11, pp. 10-11. Likewise,

 Rauso also executed relevant to Information E   - Deceptive Business Practices22 the information

                                                 17
(E) recognizing he "       in the course of business          [made] a false or misleading written

                                                                                     See also N.T.
statement for the purpose of obtaining property or credit; ... ." See Information E.

8/10/11, pp. 11-12.
                                                                                           his
       Material to the verbal affirmations Defendant Rauso offered while under oath during

plea of guilty colloquy, the Superior Court has recognized as follows:

               Our law presumes that a defendant who enters a guilty plea was
               aware of what he was doing. He bears the burden proving
               otherwise.....

               The longstanding rule of Pennsylvania law is that a defendant may
               not challenge his guilty plea by asserting that he lied while under
               oath, even if he avers that counsel induced the lies. A person who
               elects to plead guilty is bound by the statements he makes in open
               court while under oath and may not later assert grounds for
               withdrawing the plea which contradicts the statements he made at
               his plea colloquy....

               [AJ defendant who elects to plead guilty has a duty to answer
               questions truthfully. We (cannot] permit a defendant to postpone
               the final disposition of his case by lying to the court and later
                alleging that his lies were induced by the prompting of counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa.Super. 2003) citing Commonwealth
                                                                                    v.

Stork, 737 A.2d 789, 790 (Pa.Super. 1999)(Emphasis added) and Commonwealth v.
                                                                              Cappelli,
                                                                           Brown, 242
340 Pa.Super. 9, 20-21, 489 A.2d 813, 819 (1985) quoting Commonwealth   v.

Pa.Super. 240, 247, 363 A.2d 1249, 1253 (1976).

        On this record at bar, the Defendant's assertions that his plea of guilty was in some

 manner unlawful is wholly meritless. Commonwealth       v.   Mendoza supra 730 A.2d at 505 citing

                      Young supra 695 A.2d at 416. See also Commonwealth v. Pollard supra
                                                                                          832
 Commonwealth    v.


 A.2d at 523-24 citing Commonwealth       v.   Stork supra 737 A.2d at 790 and Commonwealth          v.


                                                                                 Brown supra
 Cappelli supra 340 Pa. Super. at 20-21, 489 A.2d at 819 quoting Commonwealth v.
                                                                                enters a guilty
 242 Pa.Super. at 247, 363 A.2d at 1253 ("Our law presumes that a defendant who

 plea was aware of what he was doing. He bears the burden proving otherwise.").


                                                   18
                      Defendant Rauso Received the Benefit ofhis Bargain

       Defendant Rauso repeatedly contended by not only his vacating of restitution pleadings

and related reconsideration motion, but also per his Post Conviction Relief Act litigation before

this court, that because the terms of his counseled, negotiated plea of guilty could not as a matter

of law enforced he did not receive "the benefit of his bargain" and he was thus entitled to the

return his pre -paid restitution's return. See Motion to Vacate Restitution, pp. 8-13; Brief in

Support of Motion to Vacate August 10, 2011 Restitution Order ... dated June 9, 2016, pp. 22-

24; Defendant's Supplemental Brief in Support of Motion to Vacate August 10, 2011 Restitution

Order ... dated February 22, 2017, pp. 2-9; and Motion to Vacate, Rescind ... This Court's

February 27, 2017 Order Denying Defendant's Motion to Vacate August 10, 2011 Restitution

Order ... [sic] dated March 22, 2017, pp. 4-7, 9-10.

       The Defendant in support of his intertwined contentions that the sentence at bar being

served concurrent to that past imposed by the federal      court   was a critical term to his plea

agreement and as the same could not supposedly be legally recognized proffered many

arguments, particularly often repeated claims focused on the sentencing certificate not listing

certain language grounded in the Pennsylvania judicial code's section 9761, 42 Pa.C.S. §9761.

See Motion to Vacate Restitution, pp. 8-13; Brief in Support of Motion to Vacate August 10,

2011 Restitution Order ... dated June 9, 2016, pp. 22-24; Defendant's Supplemental
                                                                                   Brief in

Support of Motion to Vacate August 10, 2011 Restitution Order ... dated February 22, 2017, pp.
                                                                            Denying
2-9; and Motion to Vacate, Rescind ... This Court's February 27, 2017 Order

Defendant's Motion to Vacate August 10, 2011 Restitution Order ... [sic] dated March 22, 2017,

pp. 4-7, 9-10.   The Defendant at the original hearing on his motion seeking to set aside his

 sentencing restitution payment responsibility (February 24, 2017), as well as during the listing
                                                                                                  of



                                                  19
his application that the court revisit its denial of the same (March 30, 2017), just largely

reiterated these contentions and neither presented any witness testimony nor persuasively

dispositive evidence otherwise (E.g. Documentation from the Pennsylvania Department of

Corrections and/or Federal Bureau of Prisons refuting the sentencing certificate's clear direction

this court's sentence was to be served concurrent with that of the federal courts.).24 N.T. 2/24/17

and N.T. 3/30/17.

       The prosecution did not dispute that it was an express and material condition of

Defendant Rauso's negotiated guilty plea that the at bar sentence be served concurrent to that

imposed previous by the federal courts, while maintaining he had been afforded this obvious plea

bargain benefit.    See N.T. 8/10/11; N.T. 2/24/17; N.T. 3/30/17; Certificate of Judgment of

Imposition of Sentence; and United States   v.   Rauso, No. DPAE 2: 10 CR 000406-001      - United
States District Court-Eastern District of Pennsylvania. Moreover, this court from a review of the

guilty plea   - sentencing hearing readily agreed from the defense perspective the concurrency of
its and the federal court's sentences was an integral term of the plea agreement and Defendant

Rauso likewise from the Commonwealth's viewpoint prepaying prior to his negotiated guilty

plea and resultant sentencing imposition six thousand five hundred ($6,500.00) dollars victim

 restitution was an equally essential condition of the plea bargain. N.T. 8/11/10, pp. 3-6, 14-20,

 21-22. See also Criminal Complaint and Probable Cause Affidavit; Information B; Certificate
                                                                                             of

 Imposition of Judgment of Sentence; and Order dated August 10, 2011.

        Despite the number of such pleadings attendant to his attacking the sentencing restitution

 payment condition and two (2) resultant hearings (February 27, 2017, and March 30, 2017), the
                                                                                            than
 sum of the Defendant's challenge to his sentence's restitution term rested on nothing more
                                                                                      and
 dubious, extrapolated legal arguments cobbled together from a superfluity of federal



                                                   20
                                                                                                his
Pennsylvania appellate court opinions having very little, if any, direct application to whether

sentence at bar was in fact running concurrent to his federal court sentence25 and the underlining

claim he had been thus deprived of his plea agreement's bargain.           See Motion to Vacate

Restitution, pp. 8-13; Brief in Support of Motion to Vacate August 10, 2011 Restitution Order
                                                                                              ...

dated June 9, 2016, pp. 22-24; Defendant's Supplemental Brief in Support of Motion to Vacate

August 10, 2011 Restitution Order ... dated February 22, 2017, pp. 2-9; and Motion to Vacate,

Rescind ... This Court's February 27, 2017 Order Denying Defendant's Motion to Vacate

August 10, 2011 Restitution Order ... [sic] dated March 22, 2017, pp. 4-7, 9-10. This court

accordingly and rightly in denying Defendant Rauso's application that his restitution sentencing

obligation be set aside concluded as follows:

               In light of the foregoing, Defendant Rauso has not sufficiently
               demonstrated he has been deprived of the plea negotiation's
               material term that his sentence at bar be served concurrent to that
               imposed by the federal courts so as to warrant the setting aside of
               his agreed upon restitution payment responsibility. N.T. 8/10/11,
               pp. 3-6, 8, 12, 21-22. This court as described above had the lawful
               authority to impose its sentence concurrent to that of the existing
               federal court sentence. 42 Pa.C.S. §9761(b). See United States v,
                                                            -
               Rauso, No. DPAE 2: 10 CRE 00406-001 United States District
                Court-Eastern District of Pennsylvania.

                Wholly consistent with the plea agreement, this court when
                imposing its sentence stated and relatedly directed by the
                sentencing certificate that the sentence at bar was to be served
                concurrently to the Defendant's ongoing federal court sentence.
                N.T. 8/10/11, pp. 21-22. See also Certificate of Imposition of
                Judgment of Sentence.         Given the eighty-eight (88) month
                 disparity between this court's maximum sentence and the
                Defendant's federal court imprisonment term, well prior to his
                 release from federal custody, Defendant Rauso         ... shall be
                 deemed to have sewed his sentence,' 42 Pa.C.S       §9761(b).  See
                 also Certificate of Imposition of Judgment of Sentence, and United
                 States v. Rauso, No. DPAE 2: 10 CRE 00406-001 - United States
                 District Court-Eastern District of Pennsylvania.

 See Order dated February 27, 2017, p. 7.


                                                  21
      Moreover, this recurrent contention by Defendant Rauso that he could not as a matter of

law receive this obviously core "benefit of his plea bargain" (Le. Sentence at bar concurrent to

that of the federal court26) was just flatly refuted when the Commonwealth in response to the

very same claim advanced via a collateral effort to withdrawal the Defendant's guilty plea

presented the uncontradicted testimony of Pennsylvania Department of Corrections and Federal

Bureaus of Prisons officials which unquestionably established the sentence of this court was in

fact recognized by each respective penal agency to be concurrent to Defendant Rauso's federal

court sentence.27 N.T. 8/8/17, pp. 8-9. See generally N.T. 8/8/17. See also Motion to Withdraw

Guilty Plea and or Modification of Sentence ... Nunc Pro Tunc [sic] dated March 8, 2017;

Motion for Leave to File Motion to Withdraw Guilty Plea and or for Modification of Sentence

Nunc Pro Tunc [sic] dated March 8, 2017; Brief in Support of Motion to Withdraw Guilty Plea

and or Modification of Sentence ... Nunc Pro Tunc [sic] dated May 30, 2017; Second Motion for

Leave to Amend Petition for Post Conviction Collateral Relief dated May 30, 2017; Defendant's

Pro Se Brief in Support of Motion to Withdraw Guilty Plea and or Modification of Sentence ...

Nunc Pro Tunc [sic] dated May 30, 2017; Motion to Vacate, Rescind ... This Court's February

27, 2017 Order Denying Defendant's Motion to Vacate August 10, 2011 Restitution Order ...

[sic] dated March 22, 2017; Motion to Rescind, Modify And Or Reconsider This Court's

February 27, 2017 Order Denying Defendant's Application for the Amendment of the Certificate

of Imposition of Judgment of Sentence [sic] dated March 22, 2017; Defendant's Supplemental

Brief in Support of Motion to Vacate August 10, 2011 Restitution Order ... dated February 22,

2017; and Amended, Counseled Petition for Post Conviction Relief ... dated July 17, 2017.

        Similar to the initial restitution challenge and reconsideration proceedings stemming from

such self-represented filings of Defendant Rauso, at the hearing on August 8, 2017, the defense



                                                22
in support of its Amended, Counseled Petition for Post Conviction Relief maintaining the

Defendant could not legally receive the concurrent sentence benefit of his bargain neither

presented any witness testimony nor offered any other evidence material to the same, but simply

relied on the existing, salient case record, including but not limited to the sentencing certificate,

and related argument. N.T. 8/8/17, pp. 8-11. See also Amended, Counseled Petition for
                                                                                      Post

Conviction Relief ... dated July 17, 2017; Motion to Vacate August 10, 2011 Restitution

Order ... dated June 9, 2016; Motion to Vacate, Rescind ... This Court's February 27,
                                                                                      2017

Order Denying Defendant's Motion to Vacate August 10, 2011 Restitution Order ... [sic] dated

March 22, 2017; N.T. 2/24/17; and N.T. 3/30/17.

          The Commonwealth in opposing Defendant Rauso's sought after Post Conviction Relief

Act remedy presented two (2) witnesses' testimony, Jamie Mayorga and Denise Wood.28 N.T.

8/8/17, pp. 15-22, 23-40.

          Jamie Mayorga had been employed for seven (7) years by the Federal Bureau of Prisons.

NT. 8/8/17, p.    15.        Over the past three (3) years, Ms. Mayorga has been so employed as a

Classification and Sentencing Computation Specialist. N.T. 8/8/17, p. 15. Her current duties

included calculating sentences for federal inmates throughout the United States. N.T. 8/8/17, pp.

 15-16.

          Ms. Mayorga confirmed, inter alia, Defendant Rauso is serving a one hundred (160)

 month incarceration term imposed on June 20, 2011, by the federal courts. N.T. 8/8/17, pp.
                                                                                            18.


 See United States      v.   Rauso, No. DPAE 2: 10 CR 000406-001 - United States District Court -

 Eastern District of Pennsylvania. (Ms. Mayorga's material records review and related sentencing

 computations were guided by the Defendant having a unique federal registration or inmate

 number, 481929066.) Ms. Mayorga as part of her considerations was aware that
                                                                              this court's



                                                    23
sentence in the above -captioned matter was directed to be served concurrent to Defendant

                                                             N.T. 8/8/17, pp. 18-19.         See also
Rauso's federal court sentence previously imposed.

Commonwealth Exhibit CP-1      - Certificate of Imposition of Judgment of Sentence dated August
10, 2011, and United States v. Rauso, No. DPAE 2: 10 CR 000406-001 -
                                                                     United States District

Court-Eastern District of Pennsylvania.

       Directly contrary to such concerns the defense otherwise simply argued, Ms. Mayorga

referencing the "primary jurisdiction rule" (Le. Defendant first sentenced and resultantly

committed to federal custody) unequivocally testified that the Federal Bureau of Prisons

authorities had no opposition and/or objection to the Defendant's sentence at bar being

recognized as served concurrently to that imposed by the federal courts. N.T. 8/8/17, pp. 19-20.

See also Commonwealth Exhibit CP-1         - Certificate of Imposition of Judgment of Sentence dated
August 10, 2011, and United States    v.   Rauso, No. DPAE 2:    10   CR 000406-001   -   United States

District Court -Eastern District of Pennsylvania. Ms. Mayorga relatedly offered that this court's

sentence being accepted as concurrent to that the federal courts directed had no adverse and/or

                                                                      N.T. 8/8/17, p. 20.     See also
impact otherwise on Defendant Rauso's federal sentence.

 Commonwealth Exhibit CP-1      - Certificate of Imposition of Judgment of Sentence dated August
 10, 2011, and United States v. Rauso, No. DPAE 2: 10 CR 000406-001 - United States
                                                                                    District

 Court -Eastern District of Pennsylvania.

        Denise Wood for the past twenty-four and one half (24.5) years has been employed by
                                                                                      to the
 the Pennsylvania Department of Corrections, the entirety of her tenure being devoted

 department's inmate record keeping and/or sentencing calculations.          N.T. 8/8/17, pp. 23-24.

 Throughout the past approximate seven (7) years, Ms. Wood for the entirety of the department
                                                                                              of

                                                                                       inter aria,
 corrections has been the Records Administrator. N.T. 8/8/17, p. 23, In this capacity,



                                                    24
Ms. Wood is responsible for overseeing statewide the accuracy of the corrections department

inmate sentencing computations. N.T. 8/8/17, p. 24.

       Ms. Wood related that she was aware      of both the sentence this court imposed and that

Defendant Rauso was also serving an unrelated sentence directed by the federal courts. N.T.

8/8/17, pp. 24-27.      See also Commonwealth Exhibit CP-1        -    Certificate of Imposition of

Judgment of Sentence dated August 10, 2011, and United States         v.   Rauso, No. DPAE 2: 10 CR

000406-001   -   United States District Court -Eastern District of Pennsylvania.      Based on such

knowledge and her related professional experiences and/or expertise, Ms. Wood completed a

Pennsylvania Department of Corrections Sentence Status Summary or DC16E form.                  N.T.

8/8/17, pp. 28-30. See also Commonwealth Exhibit CP-2        -   DC16E Form. (The Defendant to

assure the accuracy and continuity of the department's sentencing calculation records was

assigned by Ms. Wood a unique, Pennsylvania inmate number, NA-8207. See Commonwealth

Exhibit CP-2      -   DC16E Form.)    This DCI6E document memorializes for department            of

corrections' purposes a defendant's sentencing calculations, including but not limited to an

effective date, a minimum or parole eligible date, and/or a maximum or sentencing expiration

date. N.T. 8/8/17, pp. 27-30. See also Commonwealth Exhibit CP-2 - DC16E Form.

       Per Ms. Wood's sentencing determinations salient to Defendant Rauso, she testified the

sentence at bar became effective August 10, 2011, the minimum or parole eligible date was May
                                                                                    10, 2017.
 10, 2014, and that the maximum expiration date of this court's sentence was August

N.T. 8/8/17, pp. 30-31. See also Commonwealth Exhibit CP-2 - DC16E Form, p.            1.


        Having concluded the Defendant's sentence in the above -captioned matter had a

 maximum or expiration date of August 10, 2017, and that the Defendant's federal sentence

 incarceration will not be satisfied until an approximate eighty-eight (88) months subsequent, Ms.



                                                  25
Wood unequivocally testified that on the Defendant's release from the Federal
                                                                              Bureau of

Prisons' confinement he will not for any purposes be remanded to the Pennsylvania Department

of Corrections' custody. N.T. 8/8/17, pp. 31-34, 38-39. See also Commonwealth Exhibit CP-2
                                                                                                   -

                                                                                      dated
DC16E Form. Ms. Wood also offered that it was her intention via such a correspondence
                                                                                 to notify Federal
August 11, 2017 (the first day after Defendant Rauso's sentence at bar expired),
                                                                                    that the
Bureau of Prisons and/or FCI Schuylkill officials of the department's determination
                                                                                       pp. 38-
Defendant's sentence in the above-captioned matter has been fully served. N.T. 8/8/17,

39.
                                                                                 and
         The combined testimony of the Federal Bureau of Prisons' Classification

Computation Specialist, Jamie Mayorga, and the Pennsylvania Department of
                                                                          Corrections'

                                                                              proved that the
Records Administrator, Denise Wood, at the hearing on August 8, 2017, readily
                                                                                  and state
Defendant's at bar sentence per the plea agreement was recognized by both federal
                                                                                 docket, United
penal authorities as being served concurrent to his unrelated sentence under the

States   v.   Rauso, No. DPAE 2: 10 CR 000406-001     - United States District Court-Eastern District
                                                                                   same is a
 of Pennsylvania, despite any extrapolated and surmised defense arguments that the
                                                                                  does not note
 legal impossibility because the above -captioned matter's sentencing certificate
                                                                              Federal Bureau of
 credit for time served while in prison at a penal facility designated by the
                                                                       returned to the Federal
 Prisons, the Defendant following his at bar sentencing imposition was
                                                                      Department of
 Bureau of Prisons' custody versus his commitment to the Pennsylvania
                                                                                   code's section
 Corrections, and/or some incantation-like recitation of the Pennsylvania judicial
                                                                                of sentence so
 9761, 42 Pa.C.S. §9761, not being on the certificate of imposition of judgment

 detailed. See Amended, Counseled Petition for Post Conviction Relief
                                                                      ... dated July 17, 2017,

 pp. 4-5, 6-9, 10-11; and Commonwealth Exhibits CP-1        - Certificate of Imposition of Judgment

                                                 26
of Sentence dated August 10, 2011 and CP-2 - DC16E Form. See also N.T. 8/8/17, pp. 15-40.

See also Motion to Withdraw Guilty Plea and or Modification of Sentence ... Nunc Pro
                                                                                     Tune

[sic] dated March 8, 2017; Motion for Leave to File Motion to Withdraw Guilty Plea
                                                                                   and or for

Modification of Sentence Nunc Pro Tune [sic] dated March 8, 2017; Brief in Support of Motion
                                                                                          30,
to Withdraw Guilty Plea and or Modification of Sentence ... Nunc Pro Tune [sic] dated May

2017; Second Motion for Leave to Amend Petition for Post Conviction Collateral Relief
                                                                                      dated

May 30, 2017; and Amended, Counseled Petition for Post Conviction Relief          dated July 17,

2017.   Furthermore, as it related to the specific defense argument that the concurrency of

Defendant Rauso's sentence at bar to that imposed by the federal court demands the sentencing

certificate for some otherwise unspecified reasons must include the language of 42 Pa.C.S.

§9761, Ms. Wood, the Pennsylvania Department of Corrections' Chief Records Administrator,

when so questioned at the evidentiary hearing (August 8, 2017) summarily rejected the same.

N.T. 8/8/17, p. 36.   See also Commonwealth Exhibits CP-1        -   Certificate of Imposition of

Judgment of Sentence dated August 10, 2011 and CP-2 - DC16E Font

        Not only does the combined testimony of Ms. Wood (Pennsylvania Department of
                                                                                      the
Corrections) and Ms. Mayorga (Federal Bureau of Prisons) uncontradictedly demonstrate

 Defendant received "the benefit of the bargain," Ms. Wood further related to the obvious and
                                                                                      at bar
 additional benefit of Defendant Rauso that because the department has determined the

 sentence's maximum or expiration date is well before his federal sentencing's imprisonment
                                                                                           a state
 concludes, he on his release from federal custody will not for any purposes be subject to
                                                                                    See
 correctional institution's commitment. See Commonwealth Exhibit CP-2 - DC16E Form.

 also 42 Pa.C.S. §9761(b)("     [ilf the defendant is released after the maximum time imposed




                                                27
under the sentence of imprisonment he shall be deemed to have served his sentence.").

(Emphasis added).

         In light of the foregoing, the Defendant's proffered allegations and/or other implications

he contrary to plea negotiations did not receive at bar a sentence concurrent to that imposed by

the federal court are wholly meritless and not a basis to now relieve him of his sentencing

restitution payment condition. Defendant Rauso received his critical benefit of that which he

bargained and he should not on the instant record be permitted having secured such to

unilaterally abrogate that same plea agreement's corresponding obligation of obviously equal

importance to the prosecution       -the   already paid restitution to his victim. See Certificate of

Imposition of Judgment of Sentence. As the terms of the Defendant's counseled, negotiated plea

of guilty as patently established at bar and recounted above and below were legally cognizable,

the court accepted and directed the sentence to which the Commonwealth and defense agreed,

"     ... the parties and the court must abide by the terms of the plea agreement.' " Commonwealth

v.   Anderson supra 955 A.2d at 1191 quoting Commonwealth v. Parsons supra 969 A.2d at 1267-

68 citing Commonwealth         v.   Coles supra 365 Pa.Super. at 571, 530 A.2d at 458 and

Commonwealth v. Reichle supra 441 Pa.Super. at 4, 589 A.2d at 1141.

      Validity and Defendant's Rauso 's Knowledge and Acceptance      of his Sentence's Restitution
                                         Payment Condition

          Via his vacate restitution motion and reconsideration of this court's denial of the same,

 Defendant Rauso also asserted the record at bar failed to support this court's restitution
                                                                                             of
 sentencing payment obligation, See Motion to Vacate Restitution, pp. 8-13; Brief in Support
                                                                                      and
 Motion to Vacate August 10, 2011 Restitution Order ... dated June 9, 2016, pp. 2-14;

 Motion to Vacate, Rescind ... This Court's February 27, 2017 Order Denying Defendant's
                                                                                        11-14.
 Motion to Vacate August 10, 2011 Restitution Order ... [sic] dated March 22, 2017, pp.

                                                     28
                                                                                        was an
Even a cursory review of the instant record patently reveals the payment of restitution

express term of the guilty plea agreement, sufficiently supported in the context
                                                                                 of a negotiated

                                                                                     aware.
plea of guilty, and a sentencing condition of which the Defendant was most obviously

His arguments to the contrary are just meritless.

          When the prosecutor, in open court, of-record, recited the plea agreement and its
                                                                                            six

                                                                             Rauso was also at
thousand five hundred ($6,500.00) dollar restitution payment term, Defendant

the bar of the court and then standing literally within three (3) feet of the
                                                                              Commonwealth's

attorney, separated only by defense counsel's presence.       Likewise, the Defendant was so

                                                                                   without
positioned on the prosecution orally motioning, of-record, and the court allowing,
                                                                              E (deceptive
defense objection, the amendment of Informations B (theft by deception29) and
                                                                                     pp. 3, 4-8.
business practices") to reflect as an additional victim, Carla Murray. N.T. 8/10/11,

See also Informations B and E.        Defendant Rauso was yet still standing immediately to his

                                                                                   attorney's
 lawyer's left when defense counsel confirmed for the court the assistant district
                                                                                   8. In response
 statement of the guilty plea agreement's terms was accurate. N.T. 8/10/11, pp. 3,
                                                                                its recommended
 to the court's direct query whether he wanted it to accept his guilty plea and

 sentence, which certainly included the already noted, of-record, six
                                                                      thousand five hundred

 ($6,500.00) dollar restitution, Defendant Rauso unequivocally replied, "Yes."
                                                                               N.T. 8/10/11, pp.

            Furthermore, the Defendant was present when this court engaged in an
                                                                                 of-record
 12-13.

                                                                             about whether she
 dialogue with the person to whom the restitution was payable, Carla Murray,

 would be satisfied with the prepaid restitution amount less a state fee.
                                                                          N.T. 8/10/11, pp. 3, 14-

 20. In light   of the foregoing, the Defendant was well aware his payment of restitution was part
                                                                                                See
 of the negotiated plea agreement and would be a resultant sentencing condition.

                         Pollard supra 832 A.2d at 523-24 citing Commonwealth   v.   Stork supra 737
 Commonwealth       v.




                                                    29
A.2d at 790 and Commonwealth         v.   Cappelli supra 340 Pa.Super. at 20-21, 489 A.2d at 819

quoting Commonwealth     v.   Brown supra 242 Pa. Super. at 247, 363 A.2d at 1253. See also N.T,

8/10/11, pp. 9-10, 12-13 and Defendant's Guilty Plea Statement.
                                                                                          is
       Moreover, Defendant Rauso's knowledge that the plea agreement required restitution
                                                                                County Court
undoubtedly demonstrated by his having then in fact previously paid to Delaware
                                                                                    pp. 4-5. See
Financial Services the six thousand five hundred ($6,500.00) dollars. N.T. 8/10/11,

also Order dated August 10, 2011.

       Likewise, in the context of a counseled, negotiated guilty plea which the court accepted,

including its imposition of the recommended sentence, the case record at
                                                                         bar for the restitution

payment obligation contains adequate support.
                                                                                caused a six
       The stipulated affidavit of probable cause clearly details the Defendant
                                                                          Probable Cause
thousand five hundred ($6,500.00) dollar loss. See Criminal Complaint and
                                                                                            a
Affidavit.   See also N.T. 8/10/11, p. 12. Although the probable cause affidavit referenced

                                                                               explained that the
Brandi Murray, the prosecution when initially reciting the guilty plea's terms
                                                                                     was that of
 money the affidavit of probable cause described Defendant Rauso illegally receiving
                                                                        the prepaid restitution
 both Brandi and Carla Murray and seemingly by these victims' agreement
                                                                          and Carla Murray
 was to be disbursed to Carla Murray. N.T. 8/10/11, pp. 5-6. (Both Brandi
                                                                                     as to whom
 were present at the guilty plea hearing and after the Commonwealth's representation
                                                                          to address the court,
 the prepaid restitution was to be released, each declined an opportunity

 N.T. 8/10/11, pp. 3-8, 20-21.).

         This court in light of the foregoing concluded there was a sufficient   of-record basis for it
                                                                           direct that the six
 to accept that term of the negotiated guilty plea agreement and relatedly
                                                                               County Court
 thousand five hundred ($6,500.00) dollars Defendant Rauso prepaid to Delaware


                                                    30
                                                                       N.T. 8/10/11, pp. 3-6, 14-
Financial Services was as restitution to be disbursed to Carla Murray.
                                                                  Informations B and E; and
20, 21. See also Criminal Complaint and Probable Cause Affidavit;

18 Pa.C.S. §1106(a)(c)(1)(i). See also Order dated August 10,
                                                              2011.

                                             In Conclusion
                                                                            his at bar
       Defendant Rauso has just failed in any salient manner to demonstrate
                                                            than legally proper.                  This
sentencing restitution payment condition was anything other
                                                                    plea of guilty which in all
sentencing term resulted from the Defendant's counseled, negotiated
                                                                     Informations B and E; and
material respects was lawful. See Defendant's Guilty Plea Statement;
                                                                  shall be sentenced to make
N.T. 8/10/11. See also 18 Pa.C.S. §1106(a)(c)("... [T]he offender
                                                                                            claims that
restitution ...   .   ... The court shall order full restitution. ... .") Defendant Rauso's

the payment of restitution was not an express and agreed upon condition
                                                                        of his plea bargained

                                                                 instant record simply fallacious,
 sentence and/or that he had no knowledge of the same are on the
                                                                     negotiations before his even
 particularly recognizing he paid the same consistent with counsel's
                                                                 at the guilty plea hearing
 pleading guilty and the disbursement of this prepaid amount was

 discussed in his direct presence to a notable length, of-record,
                                                                  between the court, the lawyers,

                                                                         opportunities once more
 and the then present victim. Certainly, and despite then being afforded
                                                                    to ask of it questions about his
 to consult privately with his lawyer and/or the court's invitation
                                                              this court accept both his guilty
 sentence, the Defendant unambiguously voiced his desire that
                                                                             he now challenges.
 plea and the recommended sentence, including the restitution responsibility
                                                                    v. Pollard supra 832 A.2d
 N.T. 8/10/11, pp. 3-8, 10, 12, 14-20, 22-23. See also Commonwealth
                                                               and Commonwealth v. Cappelli
  at 523-24 citing Commonwealth v. Stork supra 737 A.2d at 790
                                                                                        Brown supra 242
  supra 340 Pa.Super. at 20-21, 489 A.2d at 819 quoting Commonwealth
                                                                                   v.



  Pa.Super. at 247, 363 A.2d at 1253 ("Our law presumes that
                                                             defendant who enters a guilty plea



                                                      31
was aware of what he was doing. He bears the burden proving otherwise. ... A defendant
                                                                                       who

elects to plead guilty has a duty to answer questions truthfully."). Likewise, any contentions that

the restitution sentencing condition lacked in the context of the Defendant's negotiated plea of

guilty a sufficient basis again is on the instant record meritless. See Criminal Complaint and

Probable Cause Affidavit; Informations B and E; and N.T. 8/10/11, pp. 3-8, 14-20. Having

enjoyed the obvious benefit of his plea bargain and receiving in the above-captioned a sentence

wholly concurrent to and fully served well before he is eligible for release under his federal court

sentence,31 Defendant Rauso cannot now on the instant record unilaterally renege
                                                                                 his

corresponding restitution obligation, a payment he knowingly made as part of the plea agreement

before even pleading guilty.        Commonwealth    v.   Anderson supra 955 A.2d at 1191 quoting

Commonwealth      v.   Parsons supra 969 A. at 1191 quoting Commonwealth      v.   Parsons supra 969

A.2d at 1267-68 citing Commonwealth v. Coles supra 353 Pa.Super. at 571, 530 A.2d at 458 and

Commonwealth      v.   Reichle supra 441 Pa.Super. at 4, 589 A.2d at 1141. See also N.T. 8/8/17.

        For all these reasons, this court's denial of Defendant Rauso's Motion to Vacate August

 10, 2011   Restitution Order ... and reconsideration application of the same should be affirmed.




      CO :2 old        62 330 LIE


                                                    32
     18 Pa.C.S.   §3922.
2    18 Pa.C.S.   §4107.
3    18 Pa.C.S.   §3922.
4    18 Pa.C.S.   §4107.
5    18 Pa.C.S.   §3922.
6    18 Pa.C.S.   §4107.

7 Numerous trial listings of the above-captioned matter were continued at the request
                                                                                               of the defense, absent
                                                                    federal  prosecution to conclude  with the apparent
Commonwealth objection, seemingly to allow Defendant Rauso's
                                                            well be a function of the federal matter's outcome.
understanding that the instant case's resolution could very

s     18 Pa.C.S. §3922.
      18 Pa.C.S. §4107.
    20/d.
    II 18 Pa.C.S. §3922.
    12   18 Pa.C.S. §4107.
    13   61 Pa.C.S. §§450l   et seq.

                                                                                                             Relief. See
    14
      The Defendant on July 16, 2012, lodged a self-represented Petition for Post Conviction Collateral
                                              2012.  This  petition being his first such collateral pleading  Defendant
    Defendant's PCRA Petition dated July 16,
                                     assistance.  See  generally  Commonwealth      v. Luckett,  700  A,2d   1014,  1016
    Rauso was entitled to counsel's
    (Pa.Super. 1997); Commonwealth    v. Perez,  799  A.2d  848,  851-52  (Pa.Super.   2002)  citing  Commonwealth     v.
                                                                                                  179  (Pa.Super.  1998);
    Guthrie, 749 A.2d 502, 504 (Pa.Super. 2000); Commonwealth v. Ferguson, 722 A.2d 177,
                                                                                                            14 A.3d 894,
    Commonwealth v. Hampton, 718 A.2d 1250, 1252-53 (Pa.Super. 1998); and Commonwealth v. Ramos,
    895-96 (Pa.Super. 2011).

      Defendant Rauso was previously court designated two (2) lawyers material to the PCRA proceedings. Following
                                                                                                            such an
    the respective breakdowns of attorney -client relations between the Defendant and these lawyers, he per
                                                                                                           counsel."
    application was permitted to proceed pro se with Barry W. VanRensler, Esquire serving as his "standby
    See Order dated July 19, 2012; Application to Withdraw Appearance dated June 10, 2013;
                                                                                                Order dated July 31,
    2013; Defendant's Motion for Leave to Proceed Pro Se [sic] dated August 7, 2015;      N.T.  8/28/15; Order dated
    September 1, 2015. See also Commonwealth v, Grazier, 552 Pa. 9,     12-13, 713 A.2d 81, 82 (1998). See generally
    Pa.R.Crim.P, 121.

      Following the filing of his initial collateral petition, Defendant Rauso lodged a plethora of various self-represented
                                                                                                                        Pro Se PCRA
    and a significantly lesser number of counseled pleadings during his PCRA litigation. See Defendant's
    Petition dated July 16, 2012.     See   also  Defendant's    Pro  Se  Praecipe  dated  June   10,  2013;     Defendant's     Pro Se
                                                                                                                         of  Law    dated
    Praecipe dated July 1, 2013; Defendant's Pro Se Motion to Order Counsel to File a Memorandum
                                                                                                          2014,    and November       14,
    March 12, 2014; Defendant's Pro Se Praecipes dated September 10, 2014, September 29,
                                                                                                            dated   February    6,  2015;
    2014; Defendant's Pro Se Praecipe dated December 3, 2014; Defendant's Pro               Se Praecipe
                                                                                                                   2015; Defendant's
    Defendant's Pro Se Praecipe dated March 17, 2015; Defendant's Pro Se Praecipe dated May 11,
    Pro Se Praecipe dated July 13, 2015; Defendant's Pro Se Praecipe          dated  July 28,  2015;   Defendant's     Pro Se Motion
                                                                2015;  Defendant's   Pro  Se  Praecipe     dated   October    30, 2015;
    for Leave to Proceed Pro Se [sic] dated August           7,
                                                       of Time    By  Which  to File  an Amended      Petition   for  Post   Conviction
    Defendant's Pro Se Motion for an Extension
    Collateral Relief dated October 30, 2015; Defendant's Pro Se Second Motion for Extension
                                                                                                                       of Time dated
                           Defendant's   Pro  Se  Motion   to Correct  the Judgment   of Conviction    ...  dated   January    21, 2016;
    December 30, 2015;
                                                                                                                  Defendant's      Pro Se
    Defendant's Pro Se Brief In Support of Motion to Correct Judgment ... dated January 21, 2016;
                                                                                                 Relief   ...  dated  March    31,  2016;
    Motion to Either Stay the Presently Pending Petition for Post Conviction Collateral
                                                                                                Answer     ...  dated  April   28,   2016
    Defendant's Pro Se Motion for Leave to File a Reply to the Commonwealth's
                                                                              lodged   with his Motion     for  Leave   to  File a  Reply
     (Although not granted leave by this court, Defendant Rauso jointly
                                                                                                                         to Correct the
    to the Commonwealth's Answer ... a Reply to the Commonwealth's Answer to Defendant's Motion
                                                                        Answer  to Defendant's   Motion      to Correct   the Judgment
     Judgment of Conviction Etc. Reply to the Commonwealth's
                                          2016.);  Defendant's    Pro Se Reply  to the Commonwealth's          Answer    ... dated April
     of Conviction Etc. dated April 28,
                                                 to File Enter   and Docket   April 28,  2016,  Letter  Motion         dated    April 28,
     28, 2016; Defendant's Pro    Se Praecipe
                                                                                                                    2016;    Defendant's
     2016; Defendant's Pro Se Motion to Vacate August 10, 2011 Restitution Order ... dated June 9,

                                                                     33
Pro Se Brief in Support of Motion to Vacate August 10, 2011 Restitution Order .., dated June 9, 2016; Defendant's
Pro Se Praecipe to File, Enter and Docket January 31, 2017 Letter ... dated February 3, 2017; Defendant's Pro Se
Second Motion to Correct Docket Entries dated February 3, 2017; Brief Supporting Second Motion to Correct
Docket Entries dated February 3, 2017; Defendant's Pro Se Supplemental Brief in Support of Motion to Vacate
August 10, 2011 Restitution Order ... dated February 22, 2017; Defendant's Pro Se Praecipe to File, Enter and
Docket the Judgement [sic] of Sentence Entered in the Case dated February 22, 2017; Defendant's Pro Se Motion
for Leave to File Motion to Withdraw Guilty Plea and or for Modification of Sentence Nunc Pro Tunc [sic] dated
March 8, 2017; Defendant's Pro Se Motion to Withdraw Guilty Plea and or Modification of Sentence ... Nunc Pro
Tunc [sic] dated March 8, 2017; Defendant's Pro Se Motion to Vacate, Rescind           This Court's February 27, 2017
Order Denying Defendant's Motion to Vacate August 10, 2011          Restitution Order  ... [sic] dated March 22, 2017;
Defendant's Pro Se Motion to Rescind, Modify And       Or Reconsider   This  Court's February   27, 2017 Order Denying
Defendant's Application     for the Amendment   of the Certificate of Imposition of  Judgment    of Sentence [sic] dated
March 22, 2017; Defendant's      Pro Se Motion to Modify  And  Or  Reconsider  February  27, 2017   Order Which Denied
Defendant's Motion to Stay ... [sic] dated March 22, 2017; Defendant's Pro Se [sic] Praecipe to File, Enter and
Docket February 24t, 2017 Transcripts of Proceedings dated March 23, 2017; Defendant's Pro Se Praecipe to File,
Enter and Docket Emails Sent to Stand-by Counsel dated March 30, 2017; Defendant's Pro Se Praecipe to File,
Enter and Docket True, Correct and Complete Copies of the Docket dated March 30, 2017; Defendant's Pro Se
Praecipe to File, Enter and Docket True, Complete and Correct Copies of the Docket Entries dated June 8, 2016 and
March 29, 2017 dated April 27, 2017; Defendant's Pro Se Third Motion to Correct Docket and to Bifurcate
Evidence Admitted During the March 30, 2017 Hearing dated April 27, 2017; Defendant's Pro Se Second Motion
for an Extension of Time by Which to File a Brief in Support of His Motion to Withdraw Guilty Plea and or for
Modification of Sentence; Alternatively to File Said Motion Nunc Pro Tunc [sic] dated April 27, 2017; Defendant's
Pro Se Notices of Appeal dated May 4, 2017; Defendant's Pro Se Brief in Support of Motion to Withdraw Guilty
 Plea and or Modification of Sentence ,.. Nunc Pro Tunc [sic] dated May 30, 2017; Defendant's Pro Se Second
 Motion for Leave to Amend Petition for Post Conviction Collateral Relief dated May 30, 2017; Defendant's
 Counseled Extension Application dated July 14, 2017; and Amended, Counseled Petition for Post Conviction
 Relief ... dated July 17, 2017,

  At the listing of June 14, 2017, inter alia, the Defendant orally advanced, of-record, an application for the
re -appointment of Post Conviction Relief Act counsel. N.T. 6/14/17.

   Via an order dated June 15, 2017, this court designated William P. Wismer, Esquire as Defendant Rauso's
 collateral attorney and directed he file an amended PCRA pleading no later than July 14, 2017. See Order dated
 June 15, 2017, See generally Commonwealth v. Luckett supra 700 A.2d at 1016; Commonwealth v. Perez supra 799
 A.2d at 851-52 citing Commonwealth v. Guthrie supra 749 A.2d at 504; Commonwealth v. Ferguson supra 722
 A.2d at 179; Commonwealth v. Hampton supra 718 A.2d at 1252-53; and Commonwealth v. Ramos supra 14 A.3d
 at 895-96. See generally Pa.R.Crim.P. 905(A). This court through another order also of June 15, 2017, relatedly
 allowed that Mr. VanRensler was relieved of his past appointment as the Defendant's "standby counsel." See Order
 dated June 15, 2017. See also Order dated September 1, 2015.

   On July 14, 2017, Mr. Wismer lodged an extension application seeking until July 17, 2017, to file the past
 instructed, amended collateral pleading. See Extension Application dated July 14, 2017. In an order of that same
 date (July 14, 2017), the court granted the defense's extension request. See Order dated July 14, 2017.

  Defendant Rauso on July 17, 2017, lodged his Amended, Counseled Petition for Post Conviction Relief. See
 Amended, Counseled Petition for Post Conviction Relief ... dated July 17, 2017.

   An evidentiary hearing as then scheduled in the above -captioned matter regarding Defendant Rauso's counseled,
 amended PCRA filing commenced and concluded on August 8, 2017, before this court. See Hearing Notice dated
 July 21, 2017. See also generally Pa.R.Crim.P. 908(A)(2).

   At the beginning of this proceeding (August 8, 2017), the Defendant's collateral lawyer once more confirmed
 of-record, knowing he had a right to be physically present and appreciating that should he choose not to appear in
 person Defendant Rauso's ability to effectively advance certain PCRA claims may very well be limited given the
 only available electronic means to participate was that of telephone, the Defendant after further consultation with his

                                                           34
collateral attorney opted to appear and participate at this hearing (August 8, 2017) via telephone, an election
consistent with his stated and preferred such practices. The Defendant relatedly, of-record, acknowledged the same
and confirmed he would again be appearing and participating for purposes of this listing by telephone. N.T. 8/8/17,
                                   -
p. 5-6. See Defense Exhibit D-1 Mr. Wismer's Letter dated July 26, 2017, and Correspondence dated July 21,
2017. See also Amended, Counseled Petition for Post Conviction Relief        dated July 17, 2017, pp. 5-10; Praecipe
to File, Enter and Docket January 31, 2017 Letter ... dated February 3, 2017; Motion to Vacate, Rescind ... This
Court's February 27, 2017 Order Denying Defendant's Motion to Vacate August 10, 2011 Restitution Order ... [sic]
dated March 22, 2017, and Proposed Hearing Notice; Motion to Modify And Or Reconsider February 27, 2017
Order Which Denied Defendant's Motion to Stay ,.. [sic] dated March 22, 2017, and Proposed Hearing Notice; and
Motion to Rescind, Modify And Or Reconsider This Court's February 27, 2017 Order Denying Defendant's
Application for the Amendment of the Certificate of Imposition of Judgment of Sentence [sic] dated March 22,
2017, and Proposed Hearing Notice. See generally Pa.R.Crim.P. 119.

  Per an order dated August 9, 2017, this court denied Defendant Rauso's Amended, Counseled Petition for Post
Conviction Relief ... . See Order dated August 9, 2017. See also Amended, Counseled Petition for Post Conviction
Relief dated July 17, 2017. The Defendant did not lodge an appeal from this court's denial of his amended,
counseled PCRA petition. See Order dated August 9, 2017.

15 Defendant Rauso throughout the collateral litigation and restitution payment challenge before this court was
incarcerated at FCI Schuylkill resulting from his June 20, 2011, sentence past imposed by the District Court of the
Eastern District of Pennsylvania under the docket, United States v. Rauso, No. DPAE 2: 10 CR 000406-001, an
aggregate period of incarceration of one hundred sixty (160) months followed by three (3) years supervised release.
                                                                   -
See United States v. Rauso, No. DPAE 2: 10 CR 000406-001 United States District Court-Eastern District of
Pennsylvania. Through his Praecipe to File, Enter and Docket January 31, 2017 Letter ... and other various
pleadings, Defendant Rauso confirmed his past voiced preference to appear in any hearings at bar via telephone, the
only electronic inmate hearing participation means federal penal authorities made available to this court.

  The scheduling of a date certain for any of these electronic listings necessitated that Delaware County Legal and
Audio Visual Office staff contact directly the Defendant's assigned FCI counselor and a measure of time was
needed given this person's other professional commitments to fmalize any such arrangements. See Praecipe to File,
Enter and Docket January 31, 2017 Letter .., dated February 3, 2017. See also Motion for Leave to File Motion to
Withdraw Guilty Plea and or for Modification of Sentence Nunc Pro Tune [sic] dated March 8, 2017 Proposed   -
Hearing Notice; Motion to Withdraw Guilty Plea and or Modification of Sentence ... Nunc Pro Tunc [sic] dated
March 8, 2017 - Proposed Hearing Notice; and Motion to Vacate, Rescind          This Court's February 27, 2017 Order
Denying Defendant's Motion to Vacate      August  10,  2011  Restitution  Order  ... [sic] dated March 22, 2017, and
Proposed Hearing Notice.   See generally Pa.R.Crim.P.   119.

 16The Defendant on May 4, 2017, contemporaneously lodged a second appeal notice stemming from this court
denying his application for the amendment of the certificate of imposition of judgment of sentence and his
sentencing certificate amendment reconsideration's refusal. See Notice of Appeal dated May 4, 2017, and Superior
Court No. 1460 EDA 2017. See also Motion to Modify And Or Reconsider This Court's February 27, 2017 Order
Denying Defendant's Application for the Amendment of the Certificate of Imposition of Judgment of Sentence [sic]
dated March 22, 2017; Motion to Correct the Judgment of Conviction ... dated January 21, 2016; Brief in Support of
Motion to Correct Judgment ... dated January 21, 2016; and Reply to the Commonwealth's Answer ... dated April
20, 2016. (This appeal before the Superior Court under docket No. 1460 EDA 2017 was withdrawn by the
Defendant through his lodging of such a Praecipe for Discontinuance on August 25, 2017. See Superior Court No.
 1460 EDA 2017.)

   By an order of June 9, 2017, the Superior Court recognized that Defendant Rauso had past filed (2) notices of
 appeal, but for whatever the reasons its prothonotary's office was only in receipt of one (1) appeal notice. See
 Superior Court No. 1460 EDA 2017, Order dated June 9, 2017. The appellate court via its order (June 9, 2017) thus
 directed the trial court to forward " ... any other notice of appeal in its possession filed by Appellant." See Superior
 Court No. 1460 EDA 2017, Order dated June 9, 2017. This court per an order of June 13, 2017, instructed "           that
 the Delaware    County    Office of Judicial Support  SHALL     IMMEDIATELY          send   to the Pennsylvania Superior
 Court's Prothonotary the Defendant's Notice of Appeal dated May 4, 2017, relevant to this court denying the

                                                           35
Defendant's motion to vacate his restitution sentencing payment obligation, as well as his vacating of restitution
reconsideration's denial. See Notice of Appeal dated May 4, 2017. See also Orders dated February 27, 2017, and
April 24, 2017." See Order dated June 13, 2017. See also Superior Court No. 1792 EDA 2017.

17Although the relevant Pennsylvania rule of appellate procedure provides a trial court may instruct a defendant to
lodge a statement of error assignments, it is not required to take such action. See Pa.R.A.P. 1925(b)("If the judge
entering the order giving rise to the notice of appeal (judge') desires clarification of the errors complained of on
appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge
a concise statement of the errors complained of on appeal ('Statement').")(Emphasis added.).

  Requiring on the salient record no such additional clarification material to the appellate court review of its denial
of his Motion to Vacate August 10, 2011 Restitution Order and related reconsideration motion of the same's
rejection, this court has elected not to direct Defendant Rauso to lodge an appellate complaints statement. See
Notice of Appeal dated May 4, 2017. See also Orders dated February 27, 2017, and April 24, 2017; Motion to
Vacate, Rescind ... This Court's February 27, 2017 Order Denying Defendant's Motion to Vacate August 10, 2011
Restitution Order ... [sic] dated March 22, 2017; Motion to Vacate August 10, 2011 Restitution Order         dated June
9, 2016, Defendant's Brief in Support of Motion to Vacate August 10,        2011  Restitution  Order  ... dated   June 9,
2016; Defendant's Supplemental Brief in Support    of Motion   to Vacate August   10, 2011  Restitution  Order  ... dated
February 22, 2017; N.T. 2/24/17; N.T. 3/30/17; and  N.T.  8/8/17.

18    See Certificate of Imposition of Judgment of Sentence and United States   v.   Rauso, No. DPAE 2: 10 CR 000406-
001    - United States District Court -Eastern District of Pennsylvania.

19    Pa.R.Crim.P. 590.

20A review of the guilty plea hearing's (August 10, 2011) audio recording shows this question of the court to be as
follows: "Would you like any more time to further talk privately with Mr. Bros [sic] about any of the rights and/or
related information that Guilty Plea Statement discusses?"

21    18 Pa.C.S. §3922.
22    18 Pa.C.S. §4107.

23 United States    v.    Rauso, No. DPAE 2: 10 CR 000406-001      - United States District Court -Eastern District of
Pennsylvania.

24    See Certificate of Imposition of Judgment of Sentence and United States   v.   Rauso, No. DPAE 2: 10 CR 000406-
001     -United States District Court -Eastern District of Pennsylvania.

 25United States v. Rauso, No. DPAE 2: 10 CR 000406-001            - United States District    Court-Eastern District of
Pennsylvania.
26 United States v. Rauso, No. DPAE 2: 10 CR 000406-001            - United States District Court -Eastern District of
Pennsylvania.
27 United States v. Rauso, No. DPAE 2: 10 CR 000406-001            - United States District Court -Eastern District of
Pennsylvania.

 28Not only was the testimony of both these prosecution witnesses uncontradicted, this court found the above
 summarized testimonial evidence of each Commonwealth witness to be otherwise credible.

 2918 Pa.C.S. §3922.
 " 18 Pa.C.S. §4107.

 31United States v. Rauso, No. DPAE 2: 10 CR 000406-001             - United    States District Court -Eastern District of
 Pennsylvania.



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