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Commonwealth of Pennsylvania IN THE COURT OF COMMON PLEAS

OF LACKAWANNA COUNTY

v. Criminal Division

Stephanie Tarapchak, No. 14-CR-550

Defendant

DEFENDANT’S BRIEF IN SUPPORT OF MOTION TO DISQUALIFY JUDGE MICHAEL BARRASSE

STATEMENT OF THE CASE

The Defendant, who is a Doctor of Osteopathy and political activist, has been charged by the

Office of the Attorney General with various and serious crimes relating to her management of

her medical practice in Ashland, PA. Upon her arrest, she was incarcerated for failure to make

bail that was set at $100,000.00 cash. Upon incarceration, she applied for counsel through the

Public Defender Office, which was denied until a judge ordered reconsideration, which resulted

in Joseph P. Kalinowski being appointed as counsel. On May 2, 2014, the Defendant’s bail was

modified and she was released on bail, which included supervision under House Arrest. On July

16, 2014, the Defendant filed a voluminous Petition to Remove Kalinowski for various acts of

misconduct and ineffective counsel spanning the previous six months. Eventually, six months

later, Kalinowski was removed as counsel on January 23, 2015 by Judge Geroulo. Simultaneous

to Joseph P. Kalinowski being removed, Judge Geroulo also recused himself. Judge Barrasse was

assigned and he appointed current counsel, Bernard Brown, Esq., to represent the Defendant.

On October 23, 2014, House Arrest staff arrested and committed the Defendant to

Lackawanna County Prison for alleged bail violations, notwithstanding the fact that there is no

Application for a Bench Warrant on the record by any member of law enforcement, nor is there a

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Bench Warrant or Return of Service on the record. In fact, there is no document on the record

supporting what commitment authority was used to incarcerate the Defendant and keep her

incarcerated for nearly eleven (11) months. There is no transcript or court order on the record

that supports that the Defendant was adjudicated by a judicial officer, after a hearing in open

court, to have violated bail conditions, and within such order, punishment was assigned in the

nature of continued incarceration. No such order was ever served on the Defendant. The record

does not support that the Defendant was given a (72) hour Bench Warrant hearing for bail

violations as required under Pa. Code 234 § 536 and § 150, et seq. The record does support,

however, by way of exhibits attached to the Commonwealth’s Answer to the Defendant’s second

Motion to Modify Bail filed by Atty. Brown, that the adjudication of her guilt for bail violations

was determined by non-judicial staff members of House Arrest and the Prison. The exhibits

referenced in the Commonwealth’s motion included documents referred to as a “Misconduct

Hearing Report”, an “Incident Report” and a “Letter” from House Arrest Director, Patrick Lynn,

to Judge Vito Geroulo, who was the judge who first modified the Defendant’s bail. The

“Misconduct Hearing Report” expressed a conclusion by House Arrest staff that the Defendant

should remain incarcerated. It was not filed on the record or served upon the Defendant. The

“Incident Report” was authored by House Arrest staffer, Jack Werner, which provided a

summary of events that reflected that the Defendant went off electronic surveillance on October

22, 2014, for several hours, which report was also not filed on the record or served upon the

Defendant. The “Letter” from Director Patrick Lynn to Judge Geroulo advised that the

Defendant was given a misconduct hearing at the prison by Lynn and CO Kelly, which the

Defendant did not attend as she was denied counsel. The “Letter” advised Judge Geroulo that the

Defendant was found to be in violation of House Arrest Program rules, and therefore, terminated

from House Arrest and incarcerated. The “Letter” recommended that the Defendant remain

incarcerated, but without reference to a timetable. The “Letter” was not filed on the record or

served upon the Defendant. As indicated in the “Letter”, it was served only upon Warden

McMillan, Adult Probation, Judge Geroulo and the prosecuting attorney for the Commonwealth.

The record is silent on what, if anything, Judge Geroulo did when he learned via letter that

Patrick Lynn and CO Kelly adjudicated the Defendant’s finding of guilt of bail violations and

they determined she should remain incarcerated.

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Two pre-trial hearings took place before Judge Barrasse, one on April 10, 2015, and another

on August 6, 2015, where the issue (issue) of the Defendant never having had a hearing on bail

violations before a judicial officer surfaced. The issue surfaced on April 10, 2015, because Atty.

Brown filed a Motion for Bail Modification based upon the Commonwealth’s failure to

demonstrate prima facie facts sufficient to keep the Defendant detained. In Brown’s Motion to

Modify Bail, he did not raise the issue that the Defendant never had a (72) bail violation hearing

or that the Bench Warrant, if one exists, had expired six months ago. Instead, the

Commonwealth’s attorney, Robert LeBar raised the issue. The issue was raised at the August 5,

2015 hearing because the Defendant filed a civil pro se Rule to Show Cause and Petition in

support thereof why habeas corpus relief should not be granted. It was during these hearings that

the comments, and/or the silence of Atty. Brown when he should have spoken, among other

things, became the subject of a voluminous Motion to Supplement Brown for unethical,

dishonest and unprofessional conduct, which, in nature, operated to deprive the Defendant of due

process and liberty rights, and effective counsel rights. On September 18, 2015, a pre-trial

conference was held before Judge Barrasse, where, among other issues raised by Atty. Brown

and Atty. LeBar, the Defendant’s Motion to Supplement Brown was discussed, although no

disposition was rendered. The conduct and comments, and/or his silence when he should have

spoken, of Judge Barrasse at the April 10, 2015, August 5, 2015 and September 18, 2015,

hearings or conferences that are the subject of this Motion to Disqualify Judge Barrasse, as

further discussed below.

Statement of Question Involved

1. Has Judge Barrasse violated the Pennsylvania Code of Judicial Conduct at Canons 1, 2

and 3 to the prejudice of the Defendant where he deprived her of her due process and

liberty rights?

Proposed answer: Affirmative

2. Has Judge Barrasse performed the duties of his office to the severe prejudice of the

Defendant during hearings conducted on April 10, 2015, August 5, 2015, and September

18, 2015, resulting in the Defendant being deprived of her due process and liberty rights,

and rights to effective counsel?


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3. Did Judge Barrasse conduct himself with honor, integrity and dignity in compliance with

the Rules of Judicial Conduct during hearings conducted on April 10, 2015 and August 5,

2015, resulting in the Defendant being deprived of her due process and liberty rights, and

rights to effective counsel?

Proposed answer: Negative

4. Should Judge Barrasse disqualify himself from the matter of Com. v Stephanie

Tarapchak?


Relevant procedural history

1. On April 28, 2014, Judge Vito Geroulo modified Tarapchak’s (Defendant) bail from

$100,000.00 straight cash to $25,000.00, 10% permitted.

2. On or about May 5, 2014, $2,500.00 was deposited with the Clerk of Court of the

Criminal Division on the Defendant’s behalf.

3. On May 5, 2014, Judge Vito Geroulo issued an IP Order directing the Defendant to be

placed in the Lackawanna County House Arrest Program.

4. Paragraph three (3) of the IP Order dated May 5, 2014, states as follows: “Pursuant to

#61 P.S. Section 2141, if you fail to abide by all conditions set forth by the House Arrest

Programs or fail to return to Official Detention, a Bench Warrant will be issued for your

arrest and Escape Felony Charges will be filed.

5. Paragraph four (4) of the IP Order dated May 5, 2014, states as follows: “This Order will

serve as a temporary Bench Warrant until Formal Charges for Escape are filed by the

County District Attorney’s Office.

6. On October 23, 2014, the Defendant voluntarily appeared at House Arrest for the purpose

of discussing her whereabouts on the previous evening when the electronic monitoring

equipment indicated she stepped beyond electronic surveillance, at which time the

Defendant was subjected to extensive interrogation by House Arrest Director, Patrick

Lynn (Lynn), without the benefit of counsel, even after she repeatedly demanded that her

counsel, Joseph P. Kalinowski, be summoned before speaking, and, she was interrogated

absent a Miranda warning.

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7. On October 23, 2014, after the Defendant was interrogated, she was arrested, handcuffed,

taken into custody and re-incarcerated in the Lackawanna County Prison by the

Lackawanna County House Arrest Program at the direction of the prosecutor, Deputy

Attorney General, Mr. Robert LeBar, who was on the phone with Lynn during part of the

interrogation.

8. On October 24, 2014, House Arrest Director Lynn and L.C.P. staffer, CO Kelly,

conducted a Misconduct Hearing at the prison regarding allegations that the Defendant

violated bail relating to House Arrest conditions, absent the presence of the Defendant at

the hearing because she requested counsel to be present, but was denied.

9. On October 24, 2014, Lynn created and signed a document entitled, “MISCONDUCT

HEARING REPORT” (Report), (Exhibit “A”) within which it was recommended that the

“Defendant remain incarcerated pending action by Attorney General Office”. The Report

bears no docket number, file number, incident number, reference number, commitment

authority number, exhibit number, time stamp or certificate of service. The Report is not

addressed to any judicial officer of any court, or chief administrative officer or agency.

The Report does not include a reference to an Application for a Bench Warrant, a Bench

Warrant for bail violations, or a Return of Service. The Report does not include any

notice to the Defendant of an appeal or review process. The Report does not refer to or

cite any legal authority which authorized and controlled the Misconduct Hearing, or

authorized Lynn to conduct said hearing. The Report was not entered into the record. The

Defendant was never served with a copy of a “Misconduct Hearing Report”, either by

Lynn, the Court, Atty. Brown or Atty. Joseph Kalinowski. The Report does not indicate

that the Defendant was given notice of the Misconduct Hearing’s time and date, nor

notice of a right to counsel, nor notice of the right to call witnesses. In fact, no witnesses

were called to the Misconduct Hearing.

10. On October 24, 2014, the Office of the Attorney General faxed a Motion to Revoke Bail

to the Defendant’s counsel, Joseph Kalinowski, and Judge Geroulo, within which its sole

request was that the Defendant’s bail be revoked. The Motion was not accompanied with,

nor incorporated or referred to, a Detainer.

11. At page page (3), ¶ (3), of the Motion to Revoke, the Commonwealth stated as follows:

“On October 23, 2014, Defendant was terminated from the House Arrest Program and

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returned to the Lackawanna County Prison”, but without it naming the judicial officer

who determined her guilt or terminated the Defendant from House Arrest.

12. On October 27, 2015, via letter (Letter), (Exhibit “B”, Lynn advised Judge Geroulo, the

Probation Office and the Office of the Attorney General that he had:

a. Committed the Defendant to the Lackawanna Prison on October 23, 2014;

b. Terminated the Defendant from the House Arrest Program;

c. Conducted a Formal Misconduct Hearing and determined that the Defendant was

guilty of violating House Arrest rules;

d. Advised that her termination from the House Arrest Program was warranted and

justified; and

e. Advised that the Defendant should remain incarcerated.

13. The Letter did not include reference to an Application for a Bench Warrant for bail

violations, a Bench Warrant or a Return of Service.

14. The Letter did not cite or refer to the legal authority Lynn relied upon to conduct the

Misconduct Hearing, adjudicate the Defendant’s guilt and recommend and/or enforce

continued incarceration.

15. The Letter bears no time stamp from the Lackawanna County Clerk’s Office, nor is it

addressed to a Lackawanna County Clerk’s Office, nor indicates that a Lackawanna

County Clerk or the Defendant received a copy, and it was not entered on the docket

under 14-CR-550. In fact, the Defendant was the only party to the action who was not

served.

16. Neither the Misconduct Hearing Report or the Letter are appealable legal documents that

would offer relief to the Defendant.

17. By October 27, 2014, a Monday, as required in Bench Warrant arrests for bail violations,

the Defendant had not yet received a (72) hour Bench Warrant hearing on her alleged bail

violations, as required by 234 Pa. Code, Rule 536 (A) (1) (b) and Pa. Code 234 § 150

(A) (5), (a) and (b).

18. Pursuant to Pa. Code 234 § 150 (A) (7), the Bench Warrant expired after seventy-hours

of the Defendant’s incarceration, but she was not released.

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19. At no time was the Defendant served with a Bench Warrant or a Detainer, and neither

exists on the record, as to properly inform her of the commitment authority relied upon

by the Warden to keep her incarcerated.

20. The Defendant has remained incarcerated since October 23, 2014.

21. On July 6, 2015, the Defendant filed a pro se civil “Rule to Show Cause and Petition in

support thereof why Habeas Corpus Relief should not be Granted” at term No. 15-CV-

4207, (Exhibit “C”), which Rule was signed by Judge Nealon in Motion Court and

properly served upon Warden McMillan, which required a response from Warden

McMillan within three days, which response, in the nature of an answer or objections,

was not filed. The Defendant’s counsel, Atty. Brown, was served with a copy via email

by Joseph Pilchesky. No attorney entered an appearance on behalf of Warden McMillan.

22. On July 16, 2015, after Warden McMillan was given more than ample time to file an

answer or objections to the Defendant’s “Rule to Show Cause and Petition in support

thereof why Habeas Corpus Relief should not be Granted”, the Defendant properly filed a

Motion to Make Rule Absolute. See Exhibit “D”

23. On September 15, 2015, the Defendant, by and through her legal and lawful “Next

Friend”, Joseph Pilchesky, filed a Motion to Supplement Counsel, because it was very

unlikely that her counsel, Atty. Brown, would have filed such motion against himself,

which motion is voluminous, so it is hereby incorporated by reference.

Argument

On April 10, 2015, a hearing was held before Judge Barrasse on Atty. Brown’s (Brown)

Motion for Bail Modification, which generated the following exchanges between Brown, the

Court and Atty. LeBar (LeBar), the Senior Deputy Attorney General prosecuting the

Defendant, regarding whether the Defendant violated bail:

(See Exhibit “E”, the April 10, 2015 transcript)

Page 11, lines 6 through 19:

LeBar: So the first question, I think, that needs to be addressed is, did she violate her

bail? And I think that answer is unequivocally yes. The question becomes to Your Honor

then, what happens at this point?

The Court: There was a judicial finding, wasn’t there?

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LeBar: Pardon me?

The Court: Was there a judicial finding by Judge Geroulo that she violated House

Arrest?

Brown: I don’t know

LeBar: We never had a hearing on it, your Honor.

In the exchange above, Judge Barrasse discovered for the first time, at least on the

record in open court, that the Defendant never had a hearing before a judicial officer

relating to her Bench Warrant arrest for alleged bail violations and re-incarceration on

October 23, 2014. At that point, Judge Barrasse knew the Defendant did not get her (72)

hour Bench Warrant hearing before a judicial officer. Judge Barrasse also knew the

Bench Warrant had expired. Judge Barrasse made no inquiry regarding whether a

Detainer was filed to have held the Defendant in prison since October 27, 2014, since the

Bench Warrant, if one exists, expired approximately (167) days prior to the date of this

hearing. Instead of ruling that the Defendant must be released because the Bench Warrant

had long expired, Judge Barrasse advanced the controversy into deeper discussion,

which, in effect, deprived the Defendant of her right to pre-trial liberty, and the benefits

inherent to pre-trial liberty, such as participating efficiently and effectively in the

preparation of her defense and getting first person support from family and friends. At

this point, Judge Barrasse has demonstrated an inappropriate bias and prejudice towards

the Defendant’s liberty rights.

(The bail violation hearing discussion continued)

See page 12, lines 4 – 9:

The Court: I have down here that a - - criminal misconduct hearing was held at the

prison.

LeBar: Yes

Brown: (Stayed silent)

The Court: And then there was no hearing before the Court.

Judge Barrasse again raised the issue that there was no hearing before a judicial

officer. Again, instead of ruling that the Defendant must be released because the Bench

Warrant had expired, Judge Barrasse proceeded with advancing the discussion even

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deeper, which deprived the Defendant of her right to liberty. Furthermore, Judge Barrasse

referred to the misconduct hearing, so he had a copy of the related documents that clearly

indicated that the Defendant’s guilt was determined by a non-judicial officer, Patrick

Lynn, Director of House Arrest, that the Defendant was not served with those documents

and that it was Lynn who determined that she should remain incarcerated. That was

worthy of comment by Judge Barrasse that Lynn had no authority to determine the

Defendant’s guilt regarding alleged bail violation, and no authority to even recommend

her continued incarceration. Judge Barrasse again demonstrated an inappropriate bias and

prejudice towards the Defendant’s due process and liberty rights.

(The bail violation discussion continued)


The Court: Before we go any further, are you denying the allegations in regard to the

violations?

Brown: I didn’t know that they didn’t have a full hearing. Your Honor, we’re not

challenging the findings of house arrest at that time. It would be akin – again, we’ll just

go there – because I…

(Continued on page 13, lines 1 -5)

…would say it would be akin to something similar to a Gagnon I or Gagnon II hearing:

am I correct.

The Court: Correct, that’s what I’m saying.

See page 13, lines 8 – 23

Brown: …..I had talked to my client and we are not denying those allegations made by

house arrest at this time.

The Court: Miss Tarapchak, do understand you have a right to a hearing in which Mr.

Lynn would have to testify and the Commonwealth would have to prove the allegations

of what you did wrong on house arrest, and I have to make a finding and by admitting it,

you’re waiving your right to that hearing?

Defendant: Yes, yes, Your honor.

The Court: As such, I find that you are in violation

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In this remarkable exchange, Judge Barrasse questioned the Defendant regarding

whether or not she was denying allegations in regard to the violations. At this point in

time, it’s (167) days beyond when the Defendant was supposed to have had her (72) hour

Bench Warrant hearing, and (164) days beyond when the Bench Warrant, if any exists,

expired. Judge Barrasse made no reference to the fact that the Defendant had a right to a

mandatory Bench Warrant hearing (167) days ago. This omission demonstrated a clear

bias and prejudice towards the Defendant’s due process and liberty rights.

More remarkably, Judge Barrasse advised the Defendant at this hearing that because

she just admitted to the bail violations, but at the insistence of Brown, she waived her

right to a hearing. However, the Defendant cannot waive her right to a hearing that she

was supposed to have (167) days ago. Advising the Defendant that she “has” a right to a

hearing was a moot point, because she “had” a right to a Bench Warrant hearing (167)

days ago. The Defendant had no idea that she was going to be asked that question. She

was completely ambushed by it, since the Motion for Modification of Bail that was filed

by Brown made no reference to the failure to give the Defendant a mandatory (72) hour

bail hearing.

This was the third opportunity that Judge Barrasse had to address and correct errors

and injustices suffered by the Defendant when her due process rights were denied. He

should have informed her that the Court’s failure to give her a (72) hour Bench Warrant

hearing upon her arrest and incarceration violated her due process rights, and that the

Bench Warrant had long expired, therefore, she shall forthwith be released from

confinement. It seems clear that Judge Barrasse was protecting the actions of Lynn and

Warden McMillan. The misinformation that Judge Barrasse gave the Defendant

regarding her right “to have a hearing” was unquestionably a demonstration of bias and

prejudice towards her.

The Defendant’s civil Petition for Habeas Corpus Relief at 15-CV-4207

On July 6, 2015, the Defendant, hereafter Tarapchak, pro se filed a civil Rule to Show Cause

and Petition why Habeas Corpus relief should not be Granted in the nature of release from

confinement, citing that she never had a Bench Warrant hearing within (72) hours on bail

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violations, and that the Bench Warrant, if one existed, had expired on October 27, 2014. See

Exhibit “F”, the docket entry for 15-CV-4207. The Defendant in Tarapchak’s Rule and Petition

for Habeas Corpus relief was Warden McMillan.

The docket entry for 15-CV-4207supports that Brown did not file an appearance on the

record, so he was not the Defendant’s civil counsel. The Honorable Judge Terrance Nealon,

presiding in Motion Court on July 6, 2015, signed and issued the Rule to Show Cause upon the

Warden McMillan (McMillan) that directed him to file an answer Tarapchak’s Petition for

Habeas Corpus relief within three (3) days. See Exhibit “C”, the Rule to Show Cause. No

attorney filed an appearance on behalf of McMillan. No answer or objections were filed within

three days.

On July 16, 2015, because Warden McMillan did not file an answer or objections to

Tarapchak’s Petition, she appropriately filed a Motion to make Rule Absolute. See Exhibit “F”,

the docket entry for 15-CV-4207. On July 16, 2015, Tarapchak filed a Brief in support of Motion

to Make Rule Absolute. See Exhibit “F”, the docket entry for 15-CV-4207.

On July 31, 2015, Judge Barrasse issued an order directing that oral argument will be held on

Tarapchak’s Motion to Make Rule Absolute, but not on the her civil Petition for Habeas Corpus

relief, and also, that argument will be heard on a pending Petition for Permission to File

Interlocutory Appeal on another matter on August 5, 2015 at 10:30 am. See Exhibit “G”, the

order.

The parties who were copied in on Judge Barrasse’s order dated July 31, 2015 were Bernard

Brown, Robert LeBar, Stephanie Tarapchak and Warden McMillan, which indicated that the

Court understood that Tarapchak was acting pro se on her civil Motion. See Exhibit “G”, the

order. Tarapchak is unaware when the other parties named in the order were served with it, but

Judge Barrasse’s office placed Tarapchak’s copy in the mail on August 4, 2015, the day before

the hearing, which the Defendant received on August 6, 2015, a day after the hearing,

notwithstanding the fact that Brown was also directed by the Court to provide a copy to

Tarapchak in July 31, 2015, order, which Brown did not provide. See Exhibit “H”, the envelope

that contained the order from Judge Barrasse’s chambers.

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As the direct result of Tarapchak not being served with a copy of the order through Brown, or

timely from the Court, she appeared in Court on August 5, 2015, completely unaware that her

Petition for Rule Absolute was also going to be argued. For that reason, she entered the

courtroom without her file containing documents relating to 15-CV-4207.

On July 22, 2015, LeBar had filed a “Motion to Deny and Dismiss the Defendant’s Attempt

for Civil Habeas Corpus Relief filed against Warden Robert McMillan No. 15-CV-4207”. LeBar

filed it at docket No. 14-CR-550, Tarapchak’s criminal docket number, and not at the appropriate

civil docket number, 15-CV-4207. LeBar did not serve a copy of his “Motion to Deny and

Dismiss the Defendant’s Attempt for Civil Habeas Corpus Relief filed against Warden Robert

McMillan No. 15-CV-4207” upon any of the parties captioned in 15-CV-4207, the civil Petition

for Habeas Corpus relief. Instead, LeBar only served Judge Barrasse and Brown on July 22,

2015, knowing that Brown did not represent the Defendant in the civil Petition for Habeas

Corpus relief. See the Certificate of Service that was attached to LeBar’s “Motion to Deny and

Dismiss..” at Exhibit “I”.

Despite Brown having been served with a copy of LeBar’s “Motion to Deny and Dismiss the

Defendant’s Attempt for Civil Habeas Corpus Relief filed against Warden Robert McMillan No.

15-CV-4207”, on July 22, 2015, and despite the Certificate of Service indicating that Tarapchak,

who is the pro se Plaintiff in the civil Habeas Corpus action, was not served with the Motion by

LeBar, Brown did not provide the Defendant with a copy of LeBar’s Motion, nor did he inquire

of her if she was served with it at any time prior to the hearing.

Due to LeBar not serving Tarapchak with a copy of his “Motion to Deny and Dismiss the

Defendant’s Attempt for Civil Habeas Corpus Relief filed against Warden Robert McMillan No.

15-CV-4207”, Tarapchak was unaware that the Motion was filed, and therefore, she was unable

to file a response to said Motion.

Tarapchak not only didn’t know that oral argument was going to be held on her “Motion to

Make Rule Absolute” on August 5, 2015, but she didn’t become aware that LeBar had filed his

“Motion to Deny and Dismiss the Defendant’s Attempt for Civil Habeas Corpus Relief filed

against Warden Robert McMillan No. 15-CV-4207” until he announced in open court during

argument that he had filed it on July 22, 2015.

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Judge Barrasse did not ask LeBar if the Defendant was served with a copy of his motion, since

she was not included on the Certificate of Service, which Judge Barrasse knew as he was served

with a copy of it, and he didn’t ask Brown if he provided a copy to Tarapchak. Judge Barrasse

knew that Tarapchak could not have known about LeBar’s filing of his motion, yet he went silent

on inquiring how she was served. That was a clear bias and prejudice against Tarapchak’s due

process right to notice.

LeBar’s “Motion to Deny and Dismiss the Defendant’s Attempt for Civil Habeas Corpus

Relief filed against Warden Robert McMillan No. 15-CV-4207” made the following statements:

a. ¶ 14: “Contrary to the assertions made by the Defendant, she is not being illegally

detained in the Lackawanna County Prison and should not be granted the release that

she is seeking in this latest pro se filing.”

b. ¶ 15: The matter of detainment has been extensively argued, briefed and decided by

this Honorable Court numerous times and the Commonwealth respectfully requests

the motion is denied.”

Regarding LeBar’s statement at ¶ 14, while he included eight (8) exhibits in support of his

Motion, none of them were a transcript from a Bench Warrant hearing that was provided to the

Defendant within (72) hours of incarceration, as required by law pursuant to 234 Pa § 150. None

of the exhibits was a copy of an order issued by any judicial officer that disposed of a Bench

Warrant hearing.

Regarding LeBar’s statement at ¶ 15, while he included eight (8) exhibits in support of his

Motion, none of them were a Writ of Habeas Corpus that was filed by the Defendant’s current or

previous counsel, Brown and Kalinowski respectively, within which it was averred, alleged,

asserted or believed that the Defendant’s due process rights were violated when she didn’t get

her (72) hour Bench Warrant hearing, or that she was not released from the custody of the

Lackawanna County Prison after the Bench Warrant had expired.

Furthermore, LeBar’s “Motion to Deny and Dismiss the Defendant’s Attempt for Civil

Habeas Corpus Relief filed against Warden Robert McMillan No. 15-CV-4207”, did not defend

why Warden McMillan failed to file an answer or objections to Tarapchak’s Rule and Petition to

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show why Habeas Corpus relief should not be granted, which Tarapchak could have pointed out,

among other things, if she had the opportunity to respond.

The hearing was held on August 5, 2015, on the Defendant’s civil Motion to make Rule Absolute

for Warden McMillan’s failure to respond

Note: Prior to the hearing, Brown, LeBar and Attorney Nick Kravitz, a solicitor for the prison,

entered the courtroom from Judge Barrasse’s chambers.

The transcript for the Aug. 5, 2015 oral argument is Exhibit “J”

See pages 5, lines 11 – 25 and page 6, lines 1 – 21

At pages 5 and 6 is an argument entered by Atty. Nick Kravitz (Kravitz), who appeared on

behalf of Warden McMillan. Kravitz did not enter an appearance in 15-CV-4207. Kravitz did not

file an answer or objections to the Defendant’s pro se civil “Rule to Show Cause and Petition in

support why Habeas Corpus relief should not be granted”. See Exhibit “F”, the docket.

Tarapchak had no idea that Kravitz was appearing to argue on behalf of Warden

McMillan.

Kravitz raised issues that were clearly preliminary objections in nature, to include asserting

that Tarapchak’s civil filing should have been initiated by a Complaint or Writ of Summons and

not by petition. See page 5 at lines 23 – 24. He objected that service should have been by the

Sheriff. See page 6 at lines 13 – 16. Those arguments are patently preliminary objections that

Kravitz did not file of record and serve Tarapchak. Kravitz then twice argued that the issues

raised in Tarapchak’s civil Rule and Petition for Habeas Corpus relief were already raised and

argued in the criminal proceedings by Brown, which, even if it were true, is an affirmative

defense under preclusion, or res judicata, that’s properly raised in New Matter included in an

Answer, but no Answer was filed and served on Tarapchak. See page 5 at lines 17 – 19 and page

6 at lines 18 – 21. Kravitz did not produce any filings by any of Tarapchak’s criminal lawyers

where they raised the issue that she didn’t get her (72) hour Bench Warrant hearing and that the

Bench Warrant had expired, so she should have been released.

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Absent Kravitz entering an appearance on the record, and absent the filing of an answer or

objections on the record, Judge Barrasse severely prejudiced Tarapchak in allowing Kravitz to

appear and argue the issues he raised without having an answer or objections on the record.

When Kravitz finished speaking, Judge Barrasse did not turn to Tarapchak and give her an

opportunity to object to Kravitz appearing without notice, or presenting his objections and

affirmative defenses without filing objections or an answer, or to give her an opportunity to

respond to Kravitz’s claims. Instead, Judge Barrasse completely ignored Tarapchak and turned

the floor over to Brown, who offered no rebuttal or counter-argument to Kravitz’s claims on

behalf of Tarapchak.

See page 6 at lines 22 – 23.

The Court: You want to make some semblance of normalcy on this?

Brown: I will, I’ll try to clarify it as much as I can. I filed an Omnibus Pretrial Motion

addressing all of the issues including bail. That was filed on April 2. It was heard before this

Court in May. Since then I filed a motion for reconsideration of bail issue. That was denied as

well based on the pleadings, which was the motion itself for reconsideration. An order was

entered by Court with an opinion saying why the Court felt that it was going to be denied. From

there, since then, I followed the Rules of Appellate Procedure and Criminal Procedure which

brings us here today at least on my portion that Petition for Interlocutory Appeal under the

proper rule and also for both issues actually, and the issue for Habeas was filed on July 1515 and

the issue for bail was filed on July 27 which would have been in accordance with the Rule within

the proper time.

(continued on page 8, lines 1 – 18)

Brown: So I would suggest, not knowing that the Civil Rules are filed because, as has been

stated, I wasn’t cc’d or anything on that because I represent Ms. Tarapchak in the criminal case

and any filing by anybody else or by Ms. Tarapchak herself has been commonly denied by the

Court’s as hybrid representation, especially given the fact that I’m addressing all of the issues in

my criminal filings, so I don’t see how any of the civil filings would be relevant or appropriate.

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Now, whether or not Ms. Tarapchak and I addressed that with her let’s just way when I visit

her in and our communications. Whether or not, you, how she wants to proceed, I mean, every

time…..


The Court: At this time the Court will grant the Commonwealth’s motion to deny and

dismiss the defendant’s attempt for sole habeas corpus relief filed against Warden McMillan, at

15-CV-4207. All those issues were addressed by this Court in 14-CR-550. This Court finds it not

only to be a procedural defective motion, but it finds it to be a dilatory tactic in regard to

discouraging the Rules of Criminal Procedure.

1. Judge Barrasse allowed Kravitz to appear and orally present preliminary objections to

Tarapchak’s civil Petition for Habeas Corpus relief not filed of record and with no notice

to Tarapchak.

2. Judge Barrasse allowed Kravitz to appear and orally present an affirmative defense to

Tarapchak’s civil Petition for Habeas Corpus relief not filed of record and with no notice

to Tarapchak.

3. Judge Barrasse did not allow Tarapchak any opportunity to respond to the preliminary

objections and the affirmative defense presented by Kravitz.

4. Judge Barrasse knew that Tarapchak did not know Kravitz was going to appear.

5. Judge Barrasse knew that Tarapchak was not served with LeBar’s Motion to Deny and

Dismiss her Petition for Habeas Corpus relief, that she had no idea it was even filed, and

had no opportunity to file an answer on the record.

6. Judge Barrasse did not give Tarapchak an opportunity to review LeBar’s motion and

respond to it once she became aware it was filed during oral argument.

7. Judge Barrasse intentionally and deliberately deprived Tarapchak’s due process right to

have notice of Kravitz’s appearance and what he was going to argue on behalf of Warden

McMillan.

8. Judge Barrasse intentionally and deliberately deprived Tarapchak of her right to be heard

on Kravitz’s preliminary objections and affirmative defense claims.


in opposition to LeBar’s motion.

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on her Petition for Habeas Corpus relief and her Petition to make Rule Absolute, thereby

depriving her of due process and liberty rights.

11. Judge Barrasse intentionally and deliberately deprived Tarapchak of preserving her

responses on the record relating to Kravitz’s claims and LeBar’s motion.

12. Judge Barrasse intentionally and deliberately participated in a planned conspiracy to

deprive Tarapchak of her rights to advance her argument on her Petitions for Habeas

Corpus relief, her rights to notice that Kravitz was going to appear and present

preliminary objections and affirmative defenses on behalf of Warden McMillan, her

rights to notice that LeBar had filed a Motion to Deny and Dismiss her Petition for

Habeas Corpus relief, and her right to defend against the claims made by Kravitz and

LeBar.

13. Judge Barrasse demonstrated extraordinary bias and prejudice toward Tarapchak by

allowing Kravitz to appear with no notice to her, and absent Kravitz filing a Praecipe to

Enter Appearance at 15-CV-4207, and Kravitz presenting arguments on preliminary

objections and affirmative defenses to her Petitions for Habeas Corpus relief that were

not filed on the record and served upon her.

14. Judge Barrasse demonstrated extraordinary bias and prejudice toward Tarapchak when he

did not allow Tarapchak to call Warden McMillan, who was present in the courtroom, to

the stand to question him regarding what commitment authority he relied upon to keep

her incarcerated for nearly 300 days.


deprived her of her due process right to amend her Petition for Habeas Corpus relief if he

believed either Kravitz’s or LeBar’s claims had merit.


participated in a conspiracy to allow Kravitz to appear without notice to Tarapchak,

having filed no Praecipe to Enter Appearance, and having filed no preliminary objections

or affirmative defenses on the record or served Tarapchak, and deprived Tarapchak of the

opportunity to respond to any objections or affirmative defenses raised by Kravitz.


participated in a conspiracy to allow LeBar to argue on behalf of his Motion to Deny and

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Dismiss Defendant’s Petition for Habeas Corpus relief, but deprived Tarapchak the

opportunity to respond.


participated in a conspiracy to harmlessly dispose of her Petition for Habeas Corpus relief

without her having the opportunity to state on the record that she was not given a Bench

Warrant hearing within (72) hours of incarceration and that the Bench Warrant had long

expired, therefore, her release from prison was appropriate, by allowing Kravitz, Brown

and LeBar to falsely argue that the issue was already argued, but depriving Tarapchak to

respond.


falsely stated on the record that the issue that she was never given a (72) hour Bench

Warrant Hearing and that the Bench Warrant had expired, therefore she should be

releases from prison, were addressed in 14-CR-550.

20. Judge Barrasse demonstrated extraordinary bias and prejudice toward Tarapchak when,

notwithstanding whether or not her civil Petition for Habeas Corpus relief was

appropriately filed or served, he nonetheless refused to acknowledge that the Bench

Warrant, if one ever existed, used by House Arrest to arrest and incarcerate her, had

expired nearly (300) days ago after she did not get a mandatory (72) hours Bench

Warrant hearing before a judicial officer and she should have been released, thereby

depriving her of her liberty.

Was Tarapchak’s civil Petition for Habeas Corpus relief Hybrid Representation?

See page 9, lines 2 – 18

The Court: The Court does not recognize hybrid representation, that your attorney is filing

certain motions and you or other parties are filing separate motions on your behalf.

Defendant: Okay

The Court: They may conflict. They may, in fact, hurt your rights. You asked for an appointed

attorney, you have received an appointed attorney, you have a capable attorney and it’s his filing

that I, the Court, will recognize. They will not be recognizing hybrid representations. Do you

understand that?

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Defendant: Yes.

The Court: Is there any questions about that?

Defendant: No

Hybrid representation is the function of a client filing legal papers when he or she is already

represented by counsel. Judge Barrasse demonstrated bias and prejudice toward Tarapchak when

he advised her that her pro se civil filing of a Rule and Petition why Habeas Corpus relief should

not be Granted was hybrid representation.

(End of all references to the August 5, 2105 oral argument)

Tarapchak’s Motion to Supplement Counsel filed September 15, 2015

As the direct result of dishonest, unethical and unprofessional conduct by Tarapchak’s

counsel, Bernard Brown, Esq., to include his failure to take the necessary steps to challenge

Warden McMillan’s right to keep her incarcerated, his failure to provide her with the extensive

discovery that was promised to her by Judge Geroulo nearly one year ago, his repeated false

statements on the record during pre-trial hearings to facilitate the deprivation of her due process

and liberty rights, and his complete failure to ensure her full participation in her defense and a

sound mental and emotional disposition as possible, among other things, Tarapchak filed a

Motion to Supplement Counsel (motion) on September 15, 2015, in an attempt to get honest,

ethical, professional and effective representation as constitutionally guaranteed. As the Supreme

Court has alluded many times, the right to counsel means nothing if its not a right to effective

counsel.

Tarapchak’s motion did not sit well with Judge Barrasse in that September 21, 2015, is the

scheduled beginning of trial. However, Brown’s repeated demonstrations of dishonest, unethical

and unprofessional conduct has had a profoundly negative effect on the Defendant. She has been

traumatized by Brown’s ineffectiveness and lack of preparation. The Defendant greatly fears that

Brown has “thrown her to the wolves”, and rightly so, as articulated in her voluminous motion.

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Although the court appointed an investigator to assist with preparation of trial, Brown has barely

used his services in a case involving eleven counts relating to medical violations, tens of

thousands of medical documents and nearly fifty witnesses. Brown has not disputed the

averments in the motion and the claims made therein are extremely serious in nature. Brown has,

in fact, as the record supports, demonstrated that he is untrustable and unworthy of being trusted

with the Defendant’s defense and her liberty.

On September 18, 2015, Judge Barrasse held a pre-trial conference, at which time

Tarapchak’s motion was discussed. At that conference, Judge Barrasse told the Defendant he

was not disposed to appoint new counsel and asked the Defendant if she was asking to proceed

pro se, to which the Defendant responded that she wants new counsel. The Defendant has

already suffered the cruelty of observing Brown’s conduct over several months, to include failing

to come through on countless promises he made to her to have a copy of all discovery delivered

to her for her review and comment. She never got it. She watched and listened as Brown lied in

court when he stated on the record that all issues concerning her failure to get a Bench Warrant

hearing within (72) hours were presented and argued. Brown waited until a week ago to ask the

Defendant for the names of any witnesses she might feel would help with her defense, but

without reviewing the discovery documents, she has no way of knowing what direction she

should follow in that regard. The Defendant, a medical expert in her own right, has contributed

little to her own defense and whatever defense Brown presents will more of a surprise to her than

not.

Brown’s dishonest, unethical and unprofessional conduct manifested itself to a level of

unforgivable breach of duty during August, 2015. It stared in April, 2015, and continued to

snowball moving toward trial. It’s not the Defendant’s fault that he conducted himself as

articulated in the motion. The record speaks for itself. The motion speaks for itself. The

Defendant justifiably feels that Brown played a role in keeping her incarcerated to her prejudice,

since he took no action to challenge Warden McMillan to show what commitment authority he

relied upon to keep her locked up as trial approached. The record speaks to the fact that no

Bench Warrant or Detainer exists, and even if a Bench Warrant did exist, it expired on October

27, 2014, for failure to provide the Defendant with a (72) hour mandatory Bench Warrant

hearing on bail violations under Rules 536 and 150. There is no commit document on the record

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that has been holding the Defendant in prison, thereby wrongfully precluding her from liberty

and her full opportunity to participate in her own defense.

In light of the serious averments contained in the motion, Judge Barrasse defended Brown on

September 18, 2015, indicating that a review of Brown’s bills shows he’s doing his job, but a

review of his billing doesn’t dispute the unethical, dishonest and unprofessional conduct

demonstrated by Brown for several months. Furthermore, the bills don’t support that Brown’s

representation has been effective. The Defendant was not provided with a copy of those bills.

The Defendant feels that Judge Barrasse has threatened her with having to represent herself

at trial if he removes Brown as counsel, thereby depriving her of a constitutionally protected

right to effective counsel and a fair and unbiased trial.

Furthermore, Brown appeared at the prison on September 19, 2015, and told the Defendant

that if he is removed as counsel, another attorney will be appointed, but the trial will commence

anyway, giving new counsel no time to get prepared to defend her. The Defendant is unaware of

how Brown obtained that information.

On September 20, 2015, Brown appeared at the prison again, at which time he told the

Defendant that if he is removed, the trial will begin and she will have to defend herself. The

Defendant is unaware of how Brown obtained that information.

Between the conduct and actions of Brown and Judge Barrasse as stated in the motion, and

above, the Defendant is an absolute mental and emotional train wreck, suffering from great fear

and anxiety. The Defendant feels targeted and abused by both Brown and Judge Barrasse to her

severe prejudice, likely because of her history of political activity and close relationship with

Joseph Pilchesky.

LAW

Pennsylvania Code of Judicial Conduct

Canon 1. Judges should uphold the integrity and independence of the judiciary

An independent and honorable judiciary is indispensable to justice in our society. Judges

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should participate in establishing, maintaining, and enforcing, and should themselves observe,

high standards of conduct so that the integrity and independence of the judiciary may be

preserved. The provisions of this Code should be construed and applied to further that objective.

Canon 2. Judges should avoid impropriety and the appearance of impropriety in all their

activities

A. Judges should respect and comply with the law and should conduct themselves at all times in

a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. Judges should not allow their family, social, or other relationships to influence their judicial

conduct or judgment. They should not lend the prestige of their office to advance the private

interests of others; nor should they convey or knowingly permit others to convey the impression

that they are in a special position to influence the judge. Judges should not testify voluntarily as a

character witness.

Note: Public confidence in the judiciary is eroded by irresponsible or improper conduct by

judges. Judges must avoid all impropriety and appearance of impropriety. They must expect to

be the subject of constant public scrutiny. They must therefore accept restrictions on their

conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and

willingly.

Canon 3. Judges should perform the duties of their office impartially and diligently

The judicial duties of judges take precedence over all their other activities. Their judicial duties

include all the duties of their office prescribed by law. In the performance of these duties, the

following standards apply:

A. Adjudicative responsibilities.

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(1) Judges should be faithful to the law and maintain professional competence in it. They should

be unswayed by partisan interests, public clamor, or fear of criticism.

(2) Judges should maintain order and decorum in proceedings before them.

(3) Judges should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and

others with whom they deal in their official capacity, and should require similar conduct of

lawyers, and of their staff, court officials, and others subject to their direction and control.

Note: The duty to hear all proceedings fairly and with patience is not inconsistent with the duty

to dispose promptly of the business of the court. Courts can be efficient and businesslike while

being patient and deliberate.

(4) Judges should accord to all persons who are legally interested in a proceeding, or their

lawyers, full right to be heard according to law, and, except as authorized by law, must not

consider ex parte communications concerning a pending proceeding.

Rule 2.11., relating to Disqualification, provides that:

(A)A judge shall disqualify himself or herself in any proceeding in which the judge’s

impartiality might reasonable be questioned, including but limited to circumstances where

the judge has a personal bias or prejudice.

WHEREFORE, for the reasons articulated above, as supported by the record, the

Defendant submits that Judge Barrasse has demonstrated severe bias and prejudice

towards her, demonstrated impropriety and has failed to uphold the integrity of the

judiciary. The Defendant respectfully requests that Judge Barrasse disqualify himself from

this matter in the interest of fairness and justice.

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