Bower Decision on 3rd Referral Mimics Heneks' Non-Investigation, Part II

Posted: Friday, August 31, 2018 by Pezzonovante in Labels: , , , ,
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On Wednesday, August 31, 2016, two years ago today, in a meeting which lasted less than 10 minutes, the writer of this blog and the editor of Not Enough Said (NES) were informed by Fayette County District Attorney Richard E. Bower that he would not investigate/prosecute the 3rd Referral of Fayette County Election Board, the Michael Cavanagh allegations of election fraud against state Rep. Timothy S. Mahoney (D-51) -- which were referred to the Fayette County Office of District Attorney on May 24, 2012, by a unanimous vote of the Fayette County Election Board (Ambrosini, Zapotosky, and Zimmerlink), and which the Pennsylvania Election Code mandates be investigated.



See 25 P.S. § 2642(i):  The county boards of elections, within their respective counties, shall exercise, in the manner provided by this act, all powers granted to them by this act, and shall perform all the duties imposed upon them by this act, which shall include the following:
(i) To investigate election frauds, irregularities and violations of this act, and to report all suspicious circumstances to the district attorney. [Emphasis added.]


In the article, “The Heneks-Mahoney Grand Jury Connection,” this space covered the mandatory requirement to investigate thusly:


Because the Fayette County Election Board did not exercise its power and perform its imposed duty to investigate (but instead referred the matter to DA Heneks [now DA Bower]), the law, through the requirement to investigate, takes the 3rd Referral out of the realm of "possible exploration" and firmly places it into the realm of mandatory investigation.  The district attorney's prosecutorial discretion does not supersede the law to which it is subject, and grand jury secrecy laws do not exist so that district attorneys can shield themselves from public scrutiny, lest the citizenry find out that the requirement of mandatory investigation has been turned into non-investigation.

On June 15, 2016, two submissions (which overlap and are extensions of the allegations contained in the 3rd Referral) were filed with District Attorney Richard E. Bower’s office by this writer and by the editor of NES.


This writer’s submission summed up evidence of alleged election fraud and perjury against State Rep. Timothy S. Mahoney (D-51) and requested Fayette County District Attorney Richard E. Bower to investigate and to return an indictment against Mahoney by August 10, 2016.   

The June 15 submissions were follow-ups to the request by made by District Attorney Bower in a brief January 11, 2016, meeting between Bower, this writer, and the editor of NES.  Following the abrupt meeting, DA Bower requested us to provide submissions within a week.  Subsequently, the NES editor had a serious health issue and was hospitalized.  While the hospital stay was brief, the recovery took time.  Wanting to furnish the district attorney with comprehensive documentation, and wanting to file at the same time, the submissions were filed on June 15, 2016.  (District Attorney Bower had related in the January 11 meeting that, given his duties, it would take him one month to review the case.)  Therefore, a June 15 filing date provided the district attorney ample time not only for review but also for indictment.


When we met with District Attorney Bower on July 18, 2016, having fully expected him to have reviewed the materials (including full documentation of the allegations), to have investigated the complaint, and to have determined how he intended to move forward, we were dismayed to learn from him that he had not even begun to investigate the submissions (complaints).


What was his excuse?


In a cover letter to the submissions, we had asked for District Attorney Bower to retrieve his own official court transcript of the court proceeding (1839 of 2011 G.D. – the Mahoney Referendum Petition hearing) in which we allege perjury.  On July 18, DA Bower informed us that he did not retrieve the official court transcript.  His reason was that he would have had to pay the cost of the court transcript out of his budget, and he was not going to do so!


This excuse does not hold water.  If the district attorney’s budget does not include funding for investigation of crimes which state law mandates investigation, why do we have budgets for district attorneys?  DA Bower had more than one month to investigate the matter between the June 15 submissions and our July 18 meeting, but he failed to do so.  DA Bower could have had county detectives investigate all the evidence except the court transcript, but he did not do so.  DA Bower, in the interim between June 15 and July 18, could have contacted us and informed us of his decision not to retrieve the transcript (and asked to use our official copy with the promise to return it), but he failed to do so.  District Attorney Richard E. Bower allowed more than one month to pass by with absolutely no investigation by his office on a case that state law mandates be investigated and with a general statute of limitation he knew to be August 10, 2016, but which we later came to learn was August 9, 2016.  This from a district attorney who, when he was a candidate, said the following:  “We need timely prosecution, we need timely decision-making.  I see very serious flaws in that office.”   

By the way, upon conviction, state law provides for fees and costs of prosecution to be recovered from a defendant.  So, the district attorney’s office would, upon conviction, recoup the cost of the court transcript.


Notwithstanding the above, on July 18 (more than a month after the June 15 submissions upon which he failed to act in the interim) DA Bower proffered “the lateness” of the submissions as a reason why he could not promise that he’d be able do anything by August 9, 2016, the day the general statute of limitations were set to expire.  On July 18, he even asked whether we expected him, given his schedule, to bring an indictment in three weeks time.  The NES editor replied in the affirmative.


On August 9, 2016, five years to the day of the filing of State Rep. Timothy S. Mahoney’s (D-51) fatally defective referendum petitions and altered and falsely sworn affidavits or circulator, and the last day of the general statute of limitation on the perjury allegation regarding the circulator affidavits, we met with DA Bower, again.  In that meeting, DA Richard Bower connected the relationship between State Rep. Timothy S. Mahoney and former Fayette County District Attorney Jack R. Heneks, Jr., to the non-investigation of the 3rd Referral of the Fayette County Election Board.  What a stunning admission from the district attorney whose campaign slogan as a candidate was “Want Tough,” who vowed to clean up the Office of Fayette County District Attorney, and who, during the campaign, criticized ex-DA Jack R. Heneks, Jr., thusly:  “There are cases that are being dismissed due to the failure of the district attorney not prosecuting within the required time limits.  Those cases are thrown out.”  DA Bower admitted the 3rd Referral which state law mandates be investigated was not investigated by his predecessor, former Fayette County District Attorney Jack R. Heneks, Jr.  

Then, DA Bower averred that he gave “this” to an unnamed detective.  However, between August 9 and our final meeting with DA Bower on Wednesday, August 31, 2016, we complainants were never contacted by any unnamed “detective” who supposedly “investigated” “this,” nor did DA Bower ever mention the “detective” or the “detective’s” supposed “findings” on August 31. 
  
On August 31, 2016, DA Bower never provided his determination on the evidence and particulars of the case and whether he found perjury and election fraud.  In fact, in all our meetings subsequent to our January 11, 2016, meeting, DA Bower never allowed for a discussion of the particulars of the case and never delved into the evidence of the case with us.  Instead, the meetings were marked by him abrasively cutting off any discussion by calling it debate (i.e., “I’m not going to debate this with you!” was his constant refrain).


We have only DA Bower’s word that he retrieved a copy of the court transcript (i.e., we never saw his copy; he never reviewed the testimony with us; and he never relayed whether he came to a determination of perjury given the evidence).


We have only DA Bower’s word that he gave “this” to a “detective” (i.e., we never met with the unnamed “detective” nor learned of any supposed “findings").


We have only DA Bower’s word that he “would call” Lawrence Cherba, Executive Deputy Attorney General Criminal Law Division PA Office of Attorney General, to find out about a supposed second review of the case.


We have only DA Bower’s word that he called AG Agent Gary Talent and was told by Talent that the AG’s Office investigated “this” and “found nothing.”


Bower’s final decision on the 3rd Referral and our submissions was that he was not going to “second-guess” an agency (i.e., really a solitary agent who is not a trained attorney and has no authority to make prosecutorial decisions for the Pennsylvania Office of Attorney General) that had “found nothing.”

Not going to second-guess an agency that had “found nothing”?  How could an agency (i.e., really just a single agent with no prosecutorial authority) say it “found nothing” in the face of prima facie (on the face thereof) evidence of perjury fitting the textbook definition of perjury?


What an absolute lie from AG/WRO Agent Gary Talent who, at the behest of his superiors in the disgraced and discredited AG Kathleen Kane administration (in an act which can most aptly be described as official oppression -- 18 Pa.C.S.A. § 5301(2) -- and intimidation), crossed state lines in a marked Pennsylvania State Police cruiser (accompanied by a uniformed Pennsylvania State Police officer) and hand-delivered a letter -- with no force of law (outside his jurisdiction and without the presence of West Virginia authorities) – to the NES editor in Morgantown, West Virginia, asking her to cease and desist from her intermittent calls (once every 5 or 6 weeks) to the PA Office of Attorney General seeking the status of its "second review” of a case -- in which it supposedly "lost" the information packet in the first contact (under then-AG Linda Kelly), averred to have "confirmed through multiple sources" that Heneks was "addressing our concerns" in the second contact/"first review," and now was completely ignoring in its supposed "second review." 

The Cherba Letter, on official Office of Pennsylvania Attorney General (i.e., then-AG Kathleen G. Kane) letterhead, promised a written response which never came.


Contra Agent Talent, and contra DA Bower [whose decision not to investigate/prosecute the mandatory-to-investigate 3rd Referral mimics the admitted (by Bower) non-investigation of the 3rd Referral by his predecessor, ex-DA Jack R. Heneks, Jr.], there exists ironclad, incontrovertible, irrefutable evidence of election fraud and perjury, including prima facie (on the face thereof) evidence of perjury.

There is absolutely no evidence whatsoever that any serious investigation took place -- by ex-DA Heneks, by the Pennsylvania Office of Attorney General, or by DA Bower.


“This is over!” intoned Fayette County District Attorney Richard E. Bower, as he drummed this writer and the NES editor out of his office on August 31, 2016.


Indeed, the meeting with DA Bower was over.


However, DA Bower is sadly mistaken if he believes the book is closed on the case, for the case is not over.
See also:

 Bower Decision on 3rd Referral Mimics Heneks' Non-Investigation

 Update (08-31-2018):  Rich Bower is no longer listed as a sponsor of "The Democratic Radio Hour" heard Fridays at 3:15 p.m. on WMBS 590AM.

 No Bower Sponsor



Original Documents of ex-State Rep. Timothy S. Mahoney's Fatally-Flawed Referendum Petition and Perjured Affidavits Destroyed

Posted: Tuesday, August 28, 2018 by Pezzonovante in Labels: , , , ,
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Yesterday, 08/27/2018, via telephone, this space received confirmation from Fayette County Election Bureau Director Larry Blosser that the original documents in the August 9, 2011, submission of fatally-flawed referendum petitions and altered, falsely sworn, and perjured affidavits of circulator filed by then-State Rep. Timothy S. Mahoney have been destroyed by the Fayette County Election Bureau.

 Blosser said the destruction was related to the election bureau's five-year retention policy and received assent from the Fayette County Office of District Attorney.

 Blosser also said the original documents related to alleged voter fraud/election fraud in two other referrals made to then-Fayette County District Attorney Jack R. Heneks, Jr. by the Fayette County Election Board on May 24, 2012, also have been destroyed.

 There is no problem with records destruction of original documents pertaining to the David E. Butler allegations which led to presentments against three Bullskin Township supervisors.  The supervisors went through ARD, paid fines, performed community service, and had their records expunged.  The cases there are closed. 

 The destruction of the original records pertaining to the Mahoney allegations against Uniontown businessman Michael J. Cavanagh may seem to be in order, for time limitations pertaining to the allegations have lapsed.  Yet, due to the sealed Fifth Presentment from Fayette County Grand Jury No. 2, the unanswered question as to who is the subject of that presentment, and whether Fayette County Grand Jury No. 2 Presiding Judge Steve P. Leskinen's order to seal the Fifth Presentment will be lifted after more than 44 months, the original documents regarding the Mahoney allegations against Cavanagh likely should have been retained.

 Blosser was confronted with the facts as to why the original documents regarding the Mahoney submission should not have been destroyed.  They should not have been destroyed because the matter was referred to then-DA Heneks for a determination (Third Referral), because the matter was included in his Application for the empanelment of a grand jury, because there exists a sealed Fifth Presentment (Page 7 of the next hyperlink) from the grand jury which has never been unsealed, because the grand jury docket remains active (not closed), and because, due to an extension on the time limitation which applies, Mahoney is yet subject to investigation and prosecution.

 Current District Attorney Richard E. Bower was made aware of this extension of the time limitation in a submission letter detailing the allegations against Mahoney dated 06/15/2016.  Approached with prima facie evidence of election law violations where an indictment could have issued within a matter of days to stop the time limitations from running, Bower, for weeks, shirked his duty to perform the mandatory investigation in the case and knowingly permitted the general statute of limitations regarding the allegations on perjury against Mahoney to expire (August 9, 2016; August 22, 2016). 

 Subsequently, in 2016, following his failure to perform his mandatory, statutory duty to investigate the allegations against Mahoney under 25 P.S. § 2642(i), Bower made a contribution to then-State Rep. Timothy S. Mahoney's campaign committee -- The Friends of Tim Mahoney (see the top of Page 4 in the link to the report).  Bower also became a listed co-sponsor of "The Democratic Radio Hour" heard Fridays on WMBS 590AM and funded, in part, by The Committee to Re-Elect Tim Mahoney (see bottom of Page 11 here).

 While Fayette County District Attorney Richard E. Bower should have been investigating and prosecuting the case against Mahoney (or, more appropriately, recusing himself and referring the matter to the Pennsylvania Office of Attorney General because his campaign manager Lance Winterhalter's Office of Prothonotary notarized 48 of 50 of Mahoney's altered, falsely sworn, and perjured affidavits of circulator outside the presence of the already-filed referendum petitions to which the affidavits are meant to attest), instead, after allowing the general (i.e., not the extended) statutes of limitations to expire, Bower contributed to Mahoney's election in 2016 and, in part, as a co-sponsor, currently funds the radio program stumping for Mahoney's re-election in 2018.

[Now we learn that DA Bower's office had a hand -- in the face of his personal knowledge of the extended statute of limitations which applies to Mahoney -- in assenting to the Fayette County Election Bureau destruction of the original documents filed by Mahoney on August 9, 2011.]  RETRACTED SEE UPDATE/RETRACTION

 Yesterday, a Right-to-Know Law request was filed with Fayette County Open Records Officer Amy Revak and with Fayette County Election Bureau Director Larry Blosser seeking communications between the election bureau and the district attorney's office regarding the destruction of the original documents in the Mahoney submission.

 UPDATE/RETRACTION:

 Fayette Searchlight issues a retraction for this part of the story above:  

 "Now we learn that DA Bower's office had a hand -- in the face of his personal knowledge of the extended statute of limitations which applies to Mahoney -- in assenting to the Fayette County Election Bureau destruction of the original documents filed by Mahoney on August 9, 2011."  

 This section of the article was based on incomplete knowledge.  The article section was written with the thought the original materials in matters referred to former District Attorney Jack R. Heneks, Jr. and included in his Application for the empanelment of a grand jury would be kept for at least as long as the general statute of limitations -- i.e., a five-year time period from August 9, 2011.  This would have placed the destruction squarely within the administration of current Fayette County DA Richard E. Bower.  Instead, according to an answer to a Right-To-Know law request, the Fayette County Office of District Attorney never provided direction to the Fayette County Election Bureau to preserve documents beyond their scheduled two-year destruction schedule.  Thus, according to Cheryl Karol at the FCEB, the Tim Mahoney and Michael Cavanagh papers and petitions were destroyed at the two-year interval.  Even hypothetically going off the May 24, 2012 election board meeting date (to be conservative), the documents would have been destroyed by May 24, 2014 -- squarely within the DA Heneks administration. 





Flashback: Board hears allegations of election impropriety

Posted: Saturday, August 18, 2018 by Pezzonovante in Labels: , , , ,
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With the news of two election complaints having been filed, respectively, with the Fayette County Election Bureau/Board, with Fayette County District Attorney Richard E. Bower, and with Pennsylvania Attorney General Josh Shapiro, and with the evidence of the alleged election frauds and perjuries of the current 51st District Democrat nominee and ex-State Rep. Timothy S. Mahoney in possession of Fayette County District Attorney Richard E. Bower, the Pennsylvania Office of Attorney General, First Deputy Attorney General Michelle A. Henry, and Attorney General Josh Shapiro, this space ponders why an investigation into alleged election frauds out of the county of Fayette in 2018 (on which cases the district attorney is reportedly going to recuse himself and forward to the attorney general) should take any precedence over allegations of election fraud made in 2012 that, to this day, remain uninvestigated.

 Excerpt from the May 24, 2012, meeting of the Fayette County Election Board (Source:  Herald-Standard Media YouTube Channel):





No less an expert than Judge Ralph C. Warman himself provided the outlines of the Mahoney election fraud within his ruling which struck Mahoney's fatally-flawed referendum petition.

 See:

 Warman Ruling Page 7

Warman Ruling Page 9

 NotEnoughSaidBlog YouTube Channel videos of the 09/28/2012 Presentation of suspicious circumstances surrounding the filing of then-State Rep. Timothy S. Mahoney's fatally-flawed and extralegal referendum petitions and altered, falsely sworn, and perjured Affidavits of Circulator.




















Anonymous Legal "Guru" Botches Law Interpretation in Shellhammer Case

Posted: Thursday, August 16, 2018 by Pezzonovante in Labels: ,
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Today, a local, jail-reform activist, Kathryn Jones, posted information on her Facebook page that she had received an anonymous letter in the mail regarding her son.

See:  https://www.facebook.com/KathrynAnnJones/posts/10217686121123495.


In the letter, citing Title 18, the writer attempted to explain to Jones how her son -- Christopher Shellhammer, who is incarcerated in the Fayette County Jail and who faces criminal homicide charges in the January 16 shooting death of Michael Shane Henrick -- does not have access to assert self-defense as a justification for the fatal shooting.

The problem for the anonymous, would-be, legal guru is that the explanation of the statute proffered to Jones about her son is wrong.

As the anonymous letter writer chastised Jones and urged her to read the "ENTIRE" statute, a copy of the entire statute has been appended to the end of this article with the pertinent sections in bold lettering.

The anonymous letter writer cited Section 505(b)(2.2)(iii):

(2.2)  The presumption set forth in paragraph (2.1) does not apply if:
(i)  the person against whom the force is used has the right to be in or is a lawful resident of the dwelling, residence or vehicle, such as an owner or lessee;
(ii)  the person sought to be removed is a child or grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the protective force is used;
(iii)  the actor is engaged in a criminal activity or is using the dwelling, residence or occupied vehicle to further a criminal activity;


Section (2.2) merely addresses when a presumption set forth in paragraph (2.1) does not apply.  So, we must first turn to paragraph (2.1) to find what presumption it is to which (2.2) speaks.

Here is paragraph (2.1):

(2.1)  Except as otherwise provided in paragraph (2.2), an actor is presumed to have a reasonable belief that deadly force is immediately necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat if both of the following conditions exist:
(i)  The person against whom the force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered and is present within, a dwelling, residence or occupied vehicle; or the person against whom the force is used is or is attempting to unlawfully and forcefully remove another against that other's will from the dwelling, residence or occupied vehicle.
(ii)  The actor knows or has reason to believe that the unlawful and forceful entry or act is occurring or has occurred.

Thus, (2.1) is a presumption that "an actor is presumed to have a reasonable belief that deadly force is immediately necessary to protect himself against death, seriously bodily injury, kidnapping or sexual intercourse compelled by force or threat if both of the following conditions exist: . . . .  The section then lays out the conditions (see above) in (2.1)(i,ii).

 Thus, hypothetically, if one assumes (facts not in evidence), for the sake of argument only, that Shellhammer was engaged in a criminal activity, as does the anonymous letter writer, the section cited by the anonymous letter writer as a total limitation on Shellhammer's ability to claim self-defense as a justification for the fatal shooting is wrong.  Under that hypothetical, Shellhammer would lose only the presumption in Section (2.1) that "an actor is presumed to have a reasonable belief that deadly force is immediately necessary."  He would not lose the ability to claim self-defense as a justification for the fatal shooting.  All human beings inalienably possess the right to self-defense, and Pennsylvania law acknowledges this in Title 18 § 505 (b)(2):
(2)  The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
(i)  the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
(ii)  the actor knows that he can avoid the necessity of using such force with complete safety by retreating, except the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be. 

The bottom line:  If Christopher Shellhammer possesses and retains the affirmative defense of self-protection even under the anonymous letter writer's scenario (which assumes facts not in evidence), he certainly possesses and retains that defense under the facts of the case which will be introduced into evidence during his defense at trial.

 (See below Title 18 § 505 in its entirety.  Pertinent sections in bold.)



Title 18

§ 505.  Use of force in self-protection.
(a)  Use of force justifiable for protection of the person.--The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(b)  Limitations on justifying necessity for use of force.--
(1)  The use of force is not justifiable under this section:
(i)  to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful; or
(ii)  to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
(A)  the actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;
(B)  the actor has been unlawfully dispossessed of the property and is making a reentry or recaption justified by section 507 of this title (relating to use of force for the protection of property); or
(C)  the actor believes that such force is necessary to protect himself against death or serious bodily injury.
(2)  The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
(i)  the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
(ii)  the actor knows that he can avoid the necessity of using such force with complete safety by retreating, except the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be.
(2.1)  Except as otherwise provided in paragraph (2.2), an actor is presumed to have a reasonable belief that deadly force is immediately necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat if both of the following conditions exist:
(i)  The person against whom the force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered and is present within, a dwelling, residence or occupied vehicle; or the person against whom the force is used is or is attempting to unlawfully and forcefully remove another against that other's will from the dwelling, residence or occupied vehicle.
(ii)  The actor knows or has reason to believe that the unlawful and forceful entry or act is occurring or has occurred.
(2.2)  The presumption set forth in paragraph (2.1) does not apply if:
(i)  the person against whom the force is used has the right to be in or is a lawful resident of the dwelling, residence or vehicle, such as an owner or lessee;
(ii)  the person sought to be removed is a child or grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the protective force is used;
(iii)  the actor is engaged in a criminal activity or is using the dwelling, residence or occupied vehicle to further a criminal activity; or
(iv)  the person against whom the force is used is a peace officer acting in the performance of his official duties and the actor using force knew or reasonably should have known that the person was a peace officer.
(2.3)  An actor who is not engaged in a criminal activity, who is not in illegal possession of a firearm and who is attacked in any place where the actor would have a duty to retreat under paragraph (2)(ii) has no duty to retreat and has the right to stand his ground and use force, including deadly force, if:
(i)  the actor has a right to be in the place where he was attacked;
(ii)  the actor believes it is immediately necessary to do so to protect himself against death, serious bodily injury, kidnapping or sexual intercourse by force or threat; and
(iii)  the person against whom the force is used displays or otherwise uses:
(A)  a firearm or replica of a firearm as defined in 42 Pa.C.S. § 9712 (relating to sentences for offenses committed with firearms); or
(B)  any other weapon readily or apparently capable of lethal use.
(2.4)  The exception to the duty to retreat set forth under paragraph (2.3) does not apply if the person against whom the force is used is a peace officer acting in the performance of his official duties and the actor using force knew or reasonably should have known that the person was a peace officer.
(2.5)  Unless one of the exceptions under paragraph (2.2) applies, a person who unlawfully and by force enters or attempts to enter an actor's dwelling, residence or occupied vehicle or removes or attempts to remove another against that other's will from the actor's dwelling, residence or occupied vehicle is presumed to be doing so with the intent to commit:
(i)  an act resulting in death or serious bodily injury; or
(ii)  kidnapping or sexual intercourse by force or threat.
(2.6)  A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.
(3)  Except as otherwise required by this subsection, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action.
(c)  Use of confinement as protective force.--The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime.
(d)  Definition.--As used in this section, the term "criminal activity" means conduct which is a misdemeanor or felony, is not justifiable under this chapter and is related to the confrontation between an actor and the person against whom force is used.
(June 28, 2011, P.L.48, No.10, eff. 60 days)

2011 Amendment.  Act 10 amended subsec. (b) and added subsec. (d). See the preamble to Act 10 in the appendix to this title for special provisions relating to legislative findings.
Cross References.  Section 505 is referred to in section 506 of this title; section 6304 of Title 23 (Domestic Relations); section 8340.2 of Title 42 (Judiciary and Judicial Procedure).



Sealed Fifth Presentment Reaches 44 Months

Posted: Sunday, August 12, 2018 by Pezzonovante in Labels: , , ,
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Today, 08/12/2018, marks the 44-month anniversary of the Order by Presiding Judge Steve P. Leskinen to accept and to seal the Fifth Presentment issued by Fayette County Grand Jury No. 2.

See the Leskinen Order here:  Fayette County Grand Jury No. 2 Docket (top of Page 7) .

Since 12/12/2014, for 44 months, or for three years, eight months, or for an unheard of 1,340 days, the Fifth Presentment has remained sealed, and curiously, astute readers will note, the Unified Judicial System database lists the grand jury docket as active, not closed, although jurors were dismissed 44 months ago!  

Investigating grand jury presentments are normally not sealed.  A sealed presentment usually means the target’s whereabouts is not known or a subject has yet to be apprehended. Moreover, the investigating grand jury statute contains language that logically contemplates the eventual unsealing of a sealed presentment.

See:
42 Pa.C.S.A. § 4551:   Title 42 § 4551(b)   Sealed presentment.--The supervising judge to whom a presentment is submitted may, on his own motion or at the request of the Commonwealth, direct that the presentment be kept secret until the defendant is in custody or has been released pending trial. In directing that the presentment be kept secret, the supervising judge shall enter an order requiring that the presentment be sealed and that no person shall disclose a return of the presentment except when necessary for issuance and execution of process.  [Emphasis added.]

The reason why the length of time we are dealing with on the Fifth Presentment is so unusual is because, in law, there exist time limitations by which time criminal charges must be brought, or the person alleged to have committed a crime cannot be charged.

For example, during the May 24, 2012, meeting of the Fayette County Election Board, Michael J. Cavanagh and then-State Rep. Timothy S. Mahoney traded allegations of election fraud.

See:  Allegations of election impropriety leveled by Mahoney and Cavanagh, Herald-Standard May 25, 2012

https://www.heraldstandard.com/news/local_news/allegations-of-election-impropriety-leveled-by-mahoney-and-cavanagh/article_6f8b5ca4-e6c6-551d-a591-75e6dba84d95.html

See also:  Fayette grand jury may probe vote fraud, Tribune-Review, May 24, 2012

https://triblive.com/news/fayette/1858638-74/allegations-mahoney-heneks-bullskin-cavanagh-signatures-board-election-forged-grand

This space has covered extensively (including in the last installment) the allegations and the evidence against Mahoney.  We now turn to the allegations and evidence presented by Mahoney against Michael J. Cavanagh.
 
At the May 24, 2012, meeting of the Fayette County Election Board, Mahoney leveled charges of forgery against Cavanagh pertaining to signatures on Cavanagh’s nominating petitions from Primary 2012 where Cavanagh made an unsuccessful bid against Mahoney for state representative.  Mahoney had hired a private detective to investigate the signatures and presented signed, sworn affidavits from 27 individuals who attested they did not sign Cavanagh’s nominating petitions.
 
See:  Mahoney Findings and Allegations
 
As Cavanagh filed the petitions with the state on February 16, 2012, and since the time limitation on forgery in Pennsylvania is five years from the date of the alleged crime, a prosecution would have had to commence by February 16, 2017, or Cavanagh could not be prosecuted on the charges.  Obviously, it is 2018, and Michael J. Cavanagh was never prosecuted on the Mahoney allegations of election fraud.

Did the Fayette County Election Board referral against Cavanagh result in an investigation?  Did then-Fayette County District Attorney Jack R. Heneks, Jr. pursue the matter with the investigating grand jury?  Did the grand jury issue a presentment against Michael J. Cavanagh, and if so, did Presiding Judge Steve P. Leskinen issue an order to seal it?  In other words, was Michael J. Cavanagh the subject of the sealed Fifth Presentment?  

If Cavanagh was the subject of the sealed Fifth Presentment, why was the presentment never unsealed and the case prosecuted?  Was it to cover up the non-investigation of the Third Referral against Mahoney?  Even if Cavanagh was not the subject, again, why has the Fifth Presentment remained sealed for 44 months?

As Fayette Countians paid for that county investigating grand jury, the citizens of this county deserve answers from current Fayette County District Attorney Richard E. Bower on why he has not asked Judge Steve P. Leskinen to unseal the Fifth Presentment and why no formal charges ever resulted from it.  More directly, Judge Steve P. Leskinen must be held to account for the lengthy sealing of the Fifth Presentment.

In light of the fact that suspicious circumstances surrounding outright election law violations have arisen once again in Fayette County in the case of Fairgate, it is high time and long overdue for the Pennsylvania Office of Attorney General to investigate why the sealed Fifth Presentment has remained sealed for so long and whether grand jury secrecy has been used to cover up the non-investigation/non-prosecution of alleged election frauds in Fayette County.

 Update:
A copy of the link to this article has been sent by fax to First Deputy Attorney General Michelle A. Henry.

 Update 2:  If you would like to exercise (respectfully) your First Amendment right to petition your government for a redress of grievances and have it perform its duties to investigate alleged election frauds, perjuries, and public corruption in Fayette County, you possess the right and the power to let the Pennsylvania Office of Attorney General know that you expect it to perform its duties under the law and the constitution and in accordance with the office's own Code of Conduct and with the Oath of Office sworn by its officers.

 Phone:  717-787-3391
Fax:       717-783-1107

 Update 3:  Anyone with an e-mail account can send a three-page fax for free at FaxZero.com, https://faxzero.com/.