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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN MICHAEL TEDESCO :
:
Appellant : No. 96 EDA 2022
Appeal from the Order Entered December 9, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002228-2013
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 08, 2022
John Michael Tedesco (Tedesco) appeals an order of the Court of
Common Pleas of Monroe County (PCRA court) quashing a subpoena and
denying post-conviction relief.1 We affirm.
In 2013, Tedesco and his wife, Tina Tedesco, were charged with several
offenses in connection with the death of Barbara Rabins, a dependent person
in their care. Following a jury trial, Tedesco was found guilty of third-degree
murder; neglect of a care-dependent person; theft by unlawful taking; theft
by failure to make required disposition of funds; and tampering with physical
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* Retired Senior Judge assigned to the Superior Court.
1In Pennsylvania, all post-conviction claims collaterally attacking a judgment
of sentence are governed by the Post-Conviction Relief Act, 42 Pa.C.S.
§§ 9541-9546 (PCRA).
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evidence.2 He was also convicted of conspiracy to commit each of those
offenses,3 except for the tampering count.
Tedesco was sentenced on October 26, 2015, to an aggregate prison
term of 15.25 years to 30.5 years. A panel of this Court affirmed the judgment
of sentence on direct appeal, see Commonwealth v. Tedesco, 787 EDA
2016 (Pa. Super. February 13, 2017) (unpublished memorandum), and the
Pennsylvania Supreme denied allocatur on September 19, 2017. See
Commonwealth v. Tedesco, 168 A.3d 326 (Pa. 2017). The United States
Supreme Court denied Tedesco’s petition for writ of certiorari on April 30,
2018.
Tedesco timely filed a PCRA petition within one year of that latter date,
on February 26, 2019. He then filed an amended petition on September 8,
2021. The PCRA court offered to appoint counsel, but Tedesco exercised his
right to proceed pro se. In his amended petition, Tedesco stated that the
conspiracy charges on the four counts were duplicative and in violation of the
prohibition against double jeopardy. He claimed that the Commonwealth had
maliciously prosecuted him by adding these counts, and that prosecutors had
withheld evidence of their misconduct in doing so.
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2 See 18 Pa.C.S. §§ 2502(c), 2713(a)(1), 3921(a), 3927(a), and 4910(1),
respectively.
3 See 18 Pa.C.S. § 903.
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To prove his allegations of misconduct, malfeasance and perjury on the
part of the Commonwealth, Tedesco subpoenaed the assistant district
attorney who had prosecuted the case at trial, compelling the prosecutor to
testify at an evidentiary hearing before the PCRA. The Commonwealth moved
to quash the subpoena and the PCRA court granted that motion on December
8, 2021. See Commonwealth Motion to Quash, 12/8/2021, at 1-2. The
evidentiary hearing was held on December 23, 2021, and Tedesco offered no
evidence to the PCRA court showing how the testimony of the prosecutor could
possibly advance a cogent post-conviction claim.4
On December 23, 2021, Tedesco appealed the order quashing the
subpoena, and the appeal was perfected when the PCRA court entered a final
order dismissing Tedesco’s PCRA petition on January 10, 2022.5 The PCRA
court submitted a 1925(a) opinion giving the reasons why the order should be
affirmed. See PCRA Court Opinion, 1/10/2022, at 1-7.
____________________________________________
4 On August 23, 2022, Tedesco moved this Court to remand the case to the
PCRA court so that Tedesco may file a new 1925(b) statement raising
additional appellate issues. The only stated ground for the motion is that the
PCRA court did not afford Tedesco advance notice of a summary dismissal
under Pa.R.Crim.P. 907. However, this Rule entitles a PCRA petitioner to
advance notice of dismissal where an evidentiary hearing is not held. In this
case, the PCRA court dismissed Tedesco’s PCRA petition only after holding an
evidentiary hearing on December 23, 2021. Thus, Tedesco’s motion for a
remand was denied.
5 Under Pa.R.A.P. 905(a)(5), a notice of appeal filed in response to a
determination prior to the issuance of an appealable order will be deemed filed
on the date that the final order is subsequently entered.
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Tedesco now raises a single issue in his pro se amended brief – whether
the trial court abused its discretion in quashing his subpoena to have an
assistant district attorney testify at the evidentiary hearing held on December
23, 2021. See Appellant’s Brief at 4. According to Tedesco, the testimony of
this witness was critical for the development of evidence proving that his
convictions resulted from an illegal amendment of the conspiracy charges in
the underlying criminal case.
At the outset, we note that a trial court may decline to enforce a
subpoena at its discretion. See Commonwealth v. McFalls, 251 A.3d 1286
(Pa. Super. 2021); Commonwealth v. Mucci, 143 A.3d 399, 411-12 (Pa.
Super. 2016); see also Berkeyheiser v. A-Plus Investigations, Inc., 936
A.2d 1117, 1125 (Pa. Super. 2007) (“Generally, on review of an order
concerning discovery, an appellate court applies an abuse of discretion
standard.”). A trial court will not be found to have abused its discretion unless
the record establishes that the decision was “manifestly unreasonable or the
result of partiality, prejudice, bias or ill will.” Commonwealth v. Woodard,
129 A.3d 480, 494 (Pa. 2015).
In light of the undisputed record facts, we find that the PCRA court acted
within its discretion in quashing the subpoena. First, the testimony of the
prosecutor would not have been relevant at the evidentiary hearing. The gist
of Tedesco’s claim seems to be that the Commonwealth had overcharged him
with multiple conspiracy counts that were not included in the initial charging
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document and not supported by the evidence relayed to the magisterial
district judge at the preliminary hearing.
However, this same issue was previously and fully litigated in Tedesco’s
direct appeal. See Commonwealth v. Tedesco, 787 EDA 2016, at **1-2
(Pa. Super. February 13, 2017) (unpublished memorandum);
Commonwealth v. Tedesco, 168 A.3d 326 (Pa. 2017) (denying allocatur).
The PCRA provides that a petitioner may only be eligible for relief on post-
conviction claims that have not already been previously litigated on the merits
in the highest appellate court in which review could be obtained as a matter
of right. See 42 Pa.C.S. § 9543(a)(3).
Tedesco’s purpose in having the prosecutor testify at the evidentiary
hearing was to advance a claim that had already been fully litigated. The
PCRA court, therefore, quashed a subpoena as to a witness whose testimony
would not have been germane to a PCRA claim which could have afforded
Tedesco relief. Thus, the PCRA court clearly acted within its discretion in
quashing the subpoena, and the order on review must stand.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2022
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